#RepealTheGRA — What GC Fauxminists Deliberately Get Wrong; and why they do

GC fauxminists want to repeal the GRA and roll back the rights binary trans people have to legal recognition of our correct sex (that trans men are male and trans women female).

As with all GC fauxminists ventures into the area of law and human rights, the idea that the GRA can be repealed without replacement, or replaced with something that “recognises sex is immutable” is based on a deliberately incorrect understanding, reading, and interpretation of the law.

But what is sex, especially in regards to the law? How is it defined, and what rights do people have in regards to sex?.

Let’s start with the first.

What is Sex?

With the exception of sections of the Equality Act 2010 and a matter arising from an European Court of Justice ruling, your sex is that which is entered into the book of registrations by the Registrar when your birth is registered.

It’s that simple. That which is recorded in the book of registrations is your sex, even if that sex is recorded incorrectly.

Despite what GC fauxminists like to claim, there has never been a point in UK legal history where a person’s sex is only their “biological sex”.

Even in the 1971 Corbett ruling, where the judge based his ruling on the concept that one’s sex is a biological matter determined at birth, the judgement still made it a fact of law that a person’s sex is solely that which is entered in the book of registrations.

So absolute is this that — should a cis person find that their sex has been incorrectly recorded — there is no recourse for that person to have their sex retroactively corrected.

If — as a cis woman — the book of registrations records your sex as ‘Male’ and you’re only able to have it corrected on your 40th birthday, then for every day prior to that point you were male. That’s it. For the first 40 years of your life you were male.

That’s legal sex — for binary cis people.

It gets a little more complicated for trans people and to understand why, we need a brief look at the legal timeline around the definition of what sex is.

What is Sex?: The Timeline

Prior to the 1971 Corbett ruling, sex was a matter of self-declaration. You said you were female or male, and if you could get the relevant organisation to accept that, then you were.

After the 1971 Corbett ruling your sex was that recorded in the book of registrations and could never be changed unless it could be conclusively shown that a mistake had been made in regards to the registering of the birth of a cis person.

But in 1951 that changed. Yes, that’s not a typo. 1951. The law sometimes involves a bit of time-travel, although sadly not the exciting telephone box, zipping through space and time kind.

So what happened in 1951? The UK ratified the treaty of the Convention for the Protection of Human Rights and Fundamental Freedoms, which would become known as the European Convention on Human Rights, or more simply, the Convention.

So what is it, and how does it involve time-travel?

The Convention sets out the human rights via Articles that every individual has in each state that has ratified and remains a member of the treaty. These states are known as member states.

The body that oversees rulings and determinations on what is and isn’t a human right is the European Court of Human Rights.

So where does time-travel come into this?

The European Court of Human Rights isn’t there to create new human rights for people. Rather it was created to define what rights a person has.

This is important. If you’re living under the Convention then you have human rights, and will always have had those human rights from the point that your member state ratified the treaty.

As a result of that rulings from the European Court of Human Rights are a matter of community jurisprudence. One of the effects of that is that the determination of the Court as to what is and isn’t a human right is a matter that applies from the point that the member states signed up to the Convention. After all, if you’ve a human right under the Convention then you’ve always had that human right under the Convention. It all makes things a little tricky, and it’s mostly a matter of scholarly interest rather than anything else, but it is important to bear in mind

So how does this tie into what legal sex is, and how does it make every mechanism GC fauxminists propose about replacing or scrapping the Gender Recognition Act unlawful?

Welcome to Article 8 of the Convention

Article 8 is the right to respect for private and family life, or to be more precise, “the right to respect for [your] private and family life, [your] home and [your] correspondence”.

It is the first part which is critically important. The right to privacy.

Under Article 8 you have (within that which lies within the margin of authority of the member state to deny) the right to privacy, and especially the right to privacy about your information.

And as part of that you have the autonomous right to define what your personal information is within your personal sphere, and the right to have that respected by the state excluding areas where it lies within the margin of the authority of the state to not do so.

Your sex is part of your personal identity, and therefore is a matter of information. It’s information that is recorded in the book of registrations and is specific to you, hence it being personal information and subject to the Article 8 right to privacy

In the 2002 Goodwin judgement the European Court of Human Rights ruled that a trans person has the right to self-define what their sex is and — further — the state must recognise that person’s self-declaration of sex, subject to the individual passing whichever tests the state sets out to make the determination that the person’s self-declaration should be respected.

In 2017 in the A.P., Garçon and Nicot v France ruling, the European Court of Human Rights further defined this human right as being something a state must recognise regardless of whether the person in question has undergone any form of treatment that can result in sterilisation. In other words, a member state cannot demand that a person undergo any form of sterilisation as a pre-condition for recognising their self-declaration of their sex

This is incredibly important

Despite GC fauxminist lies to the contrary, the Gender Recognition Act and the right to the recognition of your sex by the state isn’t a matter of pension rights, or the right to marry. Both were held up as examples of how the state’s refusal to recognise a person’s Article 8 human right to self-define their own private information and have it recognised by the state resulted in discrimination occurring against them, but the human right itself is the right to set an aspect of your own personal, private information that is part of your identity, in this case your sex and have that recognised by the state

And that part about sex being a matter of identity is deeply important. In the 2002 Goodwin case (Christine Goodwin v The United Kingdom — 28957/95 [2002] ECHR 588) the lawyers for the government argued that a person’s sex for the purposes of the law, being part of their identity (as phrased by the lawyers, their sexual identity), was immutable and was fixed at the moment of the registration of their birth within the book of registrations. The Court determined within its judgement that the state’s position violated Christine Goodwin’s Article 8 human right to autonomously define her own personal information, in this case sex, and have a route to have that recognised by the state.

In its judgement the European Court of Human Rights was very clear. Your sex is a matter of identity; of personal information. Because it is a matter of identity, your sex is your sexual identity. But at the time of the ruling that term was already been phased out as it kept being confused with the concept of somebody’s sexual orientation as part of their identity. So the concept of legal sex was referred to as somebody’s gender identity.

This is incredibly important. The recording of the case before the Court is very clear that the Court considered and ruled in regard to the concept that sex and gender identity are the same thing in regards to the law and legal definition.

These facts are what makes what GC fauxminists propose to be unlawful. So what is it that GC fauxminists propose?

GC fauxminist Lies and Misrepresentation About the Rights of Binary Trans People

It isn’t possible to repeal the GRA and not replace it with something.

The GRA is simply a mechanism that allows a binary trans person to access their Article 8 human right. Even if the state removes that mechanism and doesn’t replace it, a binary trans person still has that Article 8 human right and can ask the courts to provide relief in remedying the violation of their human right.

All UK courts are bound by the precedent of the European Court of Human Rights and courts have already issued court orders requiring that a person’s registration of their sex be changed because their Article 8 right to have their self-determined sex recognised by the state has been violated by the state.

And the court would do that. It would issue an order that this be done in the circumstances of no mechanism being in place that would allow a binary trans person’s self-declaration of sex to be recognised in law because the removal of the GRA and not putting in a replacement would not forbid the court from requiring that the state recognise a binary trans person’s Article 8 human rights.

That part is exceptionally important. The court is bound by the same constitutional concepts around the law as everybody else. And as with everybody else, the law is not there to allow, but only to forbid. With no law in place forbidding the human right to the state’s recognition of a binary trans person’s self-declaration of their sex then the court is bound by the precedent of the superior court and must grant an order recognising that self-declaration of sex.

Of course, that’s only true if there is no law put in place when the GRA is repealed.

But what possible law could be put in place? Or to be precise, what law do GC fauxminists want to see put in place?

A ban on changing your sex as it’s first recorded in the book of registrations? That’s unlawful. It’s a violation of the recognised Article 8 human right of a binary trans person to define their own identity and have that recognised by the state. A mechanism must exist that will allow a binary trans person to access their recognised Article 8 human right

The GC fauxminist concept that the law recognises sex as one thing, and gender as another? That the concept of sex is solely a biological thing, whereas the concept of gender can be anything. That a person’s sex is immutable and therefore may never be changed, and that a person’s gender may be changed to whatever that person wants, but solely as window dressing? That a person’s “legal gender” would have no legal weight or meaning?

Again, unlawful.

The Article 8 human right to privacy is defined in regards to this as a person’s right to define and declare what their sex is. There’s no getting around that. The 2002 Goodwin ruling was very clear. That a person’s sex for the purposes of the law is that which is recorded by the state. It is a matter both of identity and information. Information because it is a matter recorded by the state. And that the sex recorded — being a matter of identity — is a person’s sexual identity as accepted by the European Court of Human Rights (ECHR) and is therefore synonymously their gender identity.

A person’s gender identity is a person’s sex in law and a person’s sex for the purposes of the law is their gender identity. Those two concepts are entirely synonymous with each other.

So no mechanism can be created that registers a person’s sex at the moment of the registration of their birth and then does not allow that information to be changed.

It is a fundamental Article 8 human right that a binary trans person be able to change their sex as recorded based on their own self-definition and declaration of their sex.

It doesn’t matter how clever a GC fauxminist thinks their Freeman-on-the-land, hair-splitting, semantic game-playing is, it doesn’t change the reality that if the state records what a person’s sex is it must also have in a place a mechanism that allows for a binary trans person to be able to change what is recorded by the state in regards to their sex. It’s a fundamental human right and it is because the ECHR recognises and has stated that for the purposes of the law and for human rights a person’s sex and gender identity are the same thing.

GC fauxminists also try to argue that the conditions to get a GRA must be made more stringent, such as limiting the right to getting a GRC to those who are post-operative. But again, that is unlawful as a result of the 2017 A.P., Garçon and Nicot v France ruling (A.P., Garçon and Nicot v France — 79885/12 [2017] ECHR 338) and further clarified in X and Y v Romania — 2145/16 [2021] ECHR 41.

For all of the fluff that GC fauxminists try to throw around about the legal recognition of a binary trans person’s sex (“It’s a recognition of psyche!”, “A white person can’t identify as black and have their records changed!!”, “A person can’t have self-identify their age and have it changed!”) the reality is that the Convention is very clear. A person has the right to the autonomous right within their personal sphere to define their identity and information and — where it does not lie in the state’s margin of authority to refuse to recognise that information — then the state must recognise that information. And it does not lie within the state’s margin of authority to refuse to recognise a person’s self-declaration of sex, provided that person meets the criteria laid out in a lawfully compliant mechanism provided by the state for that person’s sex to be recognised.

Regardless of what GC fauxminists try to argue, there is no way to lawfully remove a binary trans person’s right to define what their sex is and have it recognised by the state short of barring the state from recognising sex all together.

Now, that is a possibility, although I doubt it’s one that GC fauxminists would wish to pursue as it would make it impossible to have any laws in place that would bar discrimination based on sex (if the state does not recognise sex as an aspect of a person’s identity, then that aspect cannot be protected in law. If that aspect is protected in law then by definition the state recognise.s sex as being part of a person’s Article 8 personal identity and information).

And that’s why GC fauxminists, regardless of all their bluster and lies, aren’t going to be able to strip binary trans people of our rights to the recognition of our self-declared sex by the state.

So what should we do in regards to GC fauxminists trying this? Well, link them this thread or the Medium article. And most importantly —

— Campaign and fight to get legal recognition of the sex of non-binary people (that sex being non-binary). That’s the most important thing to be fighting for alongside reform of the current Gender Recognition Act which, as I’ve written elsewhere, is almost certainly itself in breach of a trans person’s European Convention on Human Rights Article 8 rights.

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Jasmine Joséphine Sakura-Rose

Jasmine Joséphine Sakura-Rose

Writer, dreamer, 24/7 inclusive feminist, occasional politician