Again on Repealing the GRA
Some theoretical considerations
The debate on repealing the GRA goes on. There are those who wish to retain the GRA because they think changing sex is possible. Those who do not care about retaining the GRA even if they believe changing sex is possible. Those who wish to retain the GRA even if they believe changing sex is not possible. And those who wish to repeal the GRA because they think changing sex is not possible. A basic misunderstanding is over what “changing sex” really means. By and large, the first two groups believe, or pretend to believe, that one can actually change his or her sex, the only disagreement being over what is required to effect this change: a full operation, hormones or no actual change, self-declaration sufficing for changing your genitalia from male to female (females seem to require the full medical package, there being little support for the male vagina camp). The third group, those who wish to retain the GRA even if they do not believe sex can literally be changed, make a distinction between biological sex and legal sex. Finally, the fourth group, of which I am a member, insist that such a distinction is legally incorrect, as legal and biological sex always match, as proven by the fact that sex on the birth register (so our legally recorded sex) is never changed, and the GRC only confers an acquired gender which can, in a limited set of circumstances, override your sex. This does not create a legal sex (term never used in the GRA) different from your biological sex. I have made this argument before, several times, and this piece is not a rehash of it.
Instead, I want to make a wider point about the underlying political and philosophical narrative behind the defence of the GRA and inevitably of the Goodwin case which brought it about. Hence the quote which only Italians will recognise. These are lines from a poem by Giacomo Leopardi, “La Ginestra”. Leopardi is one of the most important and celebrated of Italian poets. In these lines he refers ironically to the myth of infinite progress that was shared by most intellectuals and politicians in the XIX century. It contains one of the most famous hendiadys in Italian poetry “le magnifiche sorti e progressive”, “ the awesome and progressive destiny” of “umana gente” (humanity). In school we learn about Leopardi as the poet of pessimism. Bad teachers will mention his disability as the reason. Good ones will mention Schopenhauer. The fact remains that history does not proceed as a single trajectory towards progress, neither does any human endeavour, including the law. The idea that every newer case is better decided than what preceded it, and if a case overturns previous case law, it is always in the direction of better protections, is seriously flawed.
It is well known that the Goodwin case overturned case law at the ECHR. I believe, and I have also written about this, that the twenty years post-Goodwin prove decisively how mistaken that decision was, and the consequences on women rights. One of the legal consequences is of course the GRA. There is an argument to be made that the GRA seriously overstepped the criteria imposed by the Goodwin decision to limit the recognition of an “acquired gender” to post-operative transsexuals, and this alone would warrant its repeal. However the post-Goodwin case law shows that the ECHR has gone down the path indicated by the GRA by eliminating the need for medical or surgical intervention in order to recognise one’s claim of sex-change. It is not the argument I am pursuing here. It is instead important to note that the ECHR is not a domestic court operating under English law and, as all international courts, is not bound by the rule of precedent. Simply put, the ECHR is not bound by the Goodwin judgment. Additionally, other countries are not bound by it, only the UK. However, this does not mean that the UK is not free to repeal the GRA. There are no legal consequences to its repeal, except the possibility of an application by an individual who claims that its repeal affects his or her rights under the HRA and therefore the Convention, if, after having exhausted domestic remedies, they have their application accepted at the ECHR. It is important to remember that the Convention requires an actual victim. Failing an individual application, there are no other legal consequences, least of all the UK being forced to exit the Council of Europe. The fact that the ECHR is an international court, not a court of appeal, also means that there can be no “appeal” to it, but only an application. This has crucial legal consequences, which I am depressed to find out some law lecturers seem to be ignorant about, though they feel entitled to expound on.
Arguing that the GRA can be repealed is not a political position. It is a legal one. As a matter of law, the GRA can be repealed just as any other law. All the more so because its original purpose has largely been overcome by other legal developments, such as the possibility of same sex marriage and the equalisation of pension rights between men and women. It is true that there remains a residual right to privacy which has been included in the GRA. This right has no legal basis. It can more correctly be described as a right to confidentiality of information held by the State. The information consists in the application to obtain, and the conferral, of a GRC. If the GRA were to be repealed, no GRCs would be given and there would be no need to maintain any confidentiality about their existence. The GRA contained the device for its own ultimate demise because this “privacy” is only relevant when a person has so successfully undergone a sex transition that revealing their birth sex would potentially be a stressful experience. But, since the GRA does not require any such transition, how would it be stressful to be recognised as a male by your ID documents when your appearance is clearly and unadulteratedly male? To anyone claiming that the GRA cannot be repealed because of this residual right to privacy simply ask, privacy of what?
I have no domestic political allegiance and I am only interested in how gender ideology is corrupting the law and affecting its proper functioning, to the point of endangering the rule of law. My argument is strictly legal. The political challenges of repeal are not my concern. But it is disingenous to present these political challenges as legal ones. They are not.
I think the GRA encourages mental illness. I think it would be better for all concerned, if it didn't exist.
Its premise, of providing privacy, which as you mention, de-facto doesn't exist (visible males, look visibly male), has been long lost. It now seems to be used by men as some "proof of womanhood" card, who are suffering from an identity disorder.
It's not good for anyone.
I am always lost when I read legal arguments (I cannot understand most of what Michael and Alessandra write) as I am no lawyer.
However, for me the repeal of the GRA is driven by a political and, most importantly, a moral stand point. The GRA (along with it's predecessors and successors) is like a cancer that needs to be eradicated and the more you wait, the more difficult it will be.
Just like a cancer it has spread everywhere and removing it won't be easy, but it must be done.
Michael seems to say (from what I understand) that it will be impossible to disentangle it, but like they managed to abolish slavery or segregation after centuries of accepted practice, where there is a will there is a way.
I am with Sall Grover on this, and I believe Alessandra thinks so too, the law at present makes no sense, so it cannot be used to table a discussion because the premise is fatally flawed.