Gender identity: 'We didn't assess the risks for women'. Says a (gay) pioneer in the fight for trans rights. Who today would like to go back

"The Yogyakarta Principles for Gender Identity,' admits Robert Wintemute, who participated in its drafting, 'did not take into account the impact it would have on women and only put trans rights first. After all, almost only men and trans people attended the meeting. Today I realised that we were wrong.
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In 2004, with the approval of the Gender Recognition Act (GRA), the United Kingdom became the first country in the world to legally recognise the trans people who have not undergone any medical treatment as being of the opposite sex. The law passed without controversy and with little media coverage, and was structured as follows: a transgender person (the terminology used by legislators and most trans people at the time) had to acquire a certificate of gender recognition from a commission consisting of lawyers and doctors.

In most cases, To obtain a certificate, a medical specialist must confirm that the applicant has gender dysphoria, has lived in the acquired sex for two years and intends to continue to do so. It is not necessary to have undergone surgery. Anyone who obtained a certificate was entitled to a new birth certificate in the acquired sex and to marry someone of the opposite sex to the acquired one (egalitarian marriage had not yet become law). There are some caveatlike sport. The law allows sports bodies to exclude those with a certificate if the sport is "gender biased": that is, when strength, endurance or physique provide an unfair advantage.

All this seems quaint today.

The now defunct proposed amendment to the GRA, which would have eliminated the need for any medical intervention to legally change sex, has sparked a culture war between feminists who seek to maintain women-only services, and trans activists who insist that 'trans women are women' on the basis of an inner 'feeling'. What few people know is the influence the law had on the international scene in the early 2000s. Two years after the GRA was passed, the following were established at a meeting in Indonesia a set of 29 guiding rules on the recognition and treatment of LGBT people. The 'Yogyakarta Principles' required that a person's self-defined gender identity be legally recognised without the need for medical treatment, transforming the GRA from obscure British legislation to a minimum standard for the whole world.

The principles were drafted and signed by a group of lawyers, human rights experts and trans rights activists, including Robert Wintemute, Professor of Law with expertise in human rights at King's College London. Wintemute has since had second thoughts. He says that women's rights have not been considered during the meeting and that he should challenge certain aspects of the principles. Admitting that they 'did not consider' that trans women still in possession of their male genitalia would seek access to women-only spaces, Wintemute, who is gay, says: 'A key factor in my change of heart was listening to women. The Principles merge lesbian and gay rights with the right to protection and expression of "gender identity".. They provide a foundation for the view that 'gender identity' - based on an individual's feelings - trumps biological sex. Principle 3 states:

Each person's self-defined sexual orientation and gender identity is an integral part of their personality and is one of the fundamental aspects of self-determination, dignity and freedom. No one should be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormone therapy, as a requirement for the legal recognition of their gender identity.

Legal documents such as birth certificates and passports must reflect self-defined gender identity, he adds, and these must be recognised in "all contexts where the identification or disaggregation of persons by gender is required by law or policy".

The Yogyakarta principles have no legal value, but they and their interpretation of 'gender' are extremely influential internationally. They are credited with influencing national governments such as Argentina, Ireland, Denmark, Malta and some Canadian provinces to introduce the recognition of 'gender identity' on the basis of self-identification.

The Principles also underpin the position of human rights organisations such as Amnesty International, which campaigns worldwide for non-operated males who identify themselves as women to be housed in women-only accommodation. One of the reports of Amnestywhich asks Hong Kong to detain prisoners in facilities 'consistent with their gender identity', approves the policy of the Scottish Prison Service. According to the report, this policy states that "a MtF person in custody who lives permanently as a woman without genital surgery should be assigned to a women's institution. It should not automatically be considered a high risk of sexual offences for other persons in custody, and should not be subject to any automatic restriction on its association with other persons in custody".

Having considered the implications of the Principles for women, Wintemute says she should have challenged the references to "self-defined gender identity" and "changes in identity documents recognised in all contexts" in Principle 3. "If I had thought about the implications of Principle 3," says Wintemute, "I should have considered the potential conflict with women's rights, but I did not. Nor, as far as he knows, did anyone else at the meeting where the principles were drafted. "Women's rights have not been raised".. Given the number of human rights experts present at the meeting, including a dozen former UN special rapporteurs and commission members, this was a surprising absence, Wintemute admits. The European Convention on Human Rights states very clearly that certain rights can be restricted if they have an impact on the "rights and freedoms of others". He explains: 'There was a feeling that transgender people have suffered and are saying that this is what is needed - the consequences of refusing surgery and self-identification had not yet manifested themselves in 2006. As far as I remember, no one thought that males with intact genitals could access women's spaces.". Despite the fact that Principle 3 specifically rejected the requirements for medical treatment before the legal transition, Wintemute says she assumed that most trans women would want to undergo surgery. "I now see that Principle 3 was silent on whether a diagnosis, waiting period, or any other safeguard could be required."

The majority of the signatories of Yogyakarta 2006 were men and trans people. "The issue of access to single-sex spaces largely concerns women and not men. So it was easy for the men in the group to get carried away by the concern for LGBT rights and ignore this issue," says Wintemute. Among the women present, some were asked to focus on particular aspects, such as health, and they limited their contributions to these areas. As far as Wintemute remembers, the other signatories did not raise questions about potential conflicts between women's rights and transgender rights. The omission may not have been a simple oversight. The co-chair of the meeting, Brazilian sexual rights activist Sonia Correa, wants references to gender inequality removed from the human rights discourse and keeps the Yogyakarta principles as an example to follow because they do not mention the word 'woman'. Correa said he refuses to use the term 'women's rights' because he believes that feminism should not be linked to women's bodies and that sex is a Western social construct of the 19th century. According to her, the view that the biological difference between the sexes is materially important is 'fundamentalist'.

In 2017 some of the Yogyakarta signatories got together and, together with other experts, signed ten additional principles. These have gone far beyond the original principles. Principle 31 states that all countries should "ending the registration of a person's sex and gender in identity documents such as birth certificates".. If sex or gender registration continues, it must be done on the basis that there are no restrictions to self-identification, such as "a psycho-medical diagnosis . . . age . . . marital status . . . or any other opinion of a third party'.

Wintemute was not invited to participate in the drafting of the new set of Principles. He says of Principle 31: "This is outrageous! There is no country in the world that has put an end to sex registration on birth certificates". The original Principles were based on the law as it existed somewhere in the world, even if only in one country, he explains. Wintemute did not notice the change in 2017, however. Despite his focus on LGBT human rights, the furious debates raging around the world between feminist groups and trans activists had failed to penetrate his world. He finally woke up in 2018, when he was teaching a class at a summer school. His lecture included a discussion of the UK's 'spousal veto' provision, which gives spouses of people in transition the right to an annulment before the transition is legally recognised. "I explained that spouses have not signed up to a same-sex marriage, so their consent is required before they are made part of a marriage." A trans man in the audience objected. "I talked about the need to consider the rights of others and said that trans rights do not trump everything else. The person got angry and rushed out of the room."

Since then, Increasing evidence has emerged of the impact on women of males self-identifying with the opposite sex, with and without formal certification. In the UK, Canada, Argentina and Ireland, prisoners have been locked up with violent trans women, including a trans woman described as a 'serious threat to women'.

Irish law allows gender self-identification even for those under 18, without the requirement of having had a 'significant' transition or having lived as the other sex for a long period of time. When Ireland passed its version of the law allowing trans people to legally self-identify with the opposite sex in 2015, Human Rights Watch called the country a 'global transgender leader'. Ireland is considered by trans rights activists to be the model for trans people. gold standard of self-identification, and for them no women were negatively affected.

In December 2019, a judge has sentenced a trans woman to six years and six months' imprisonment (with six months suspended) for ten counts of sexual assault on a child and one count of child abuse over a period of two years. The appellant (who cannot be named to protect the victim's identity) had undergone a transition at the time of the offences against the child. On appeal against the sentence, the trans woman's lawyer argued that the first instance judge did not take "sufficient account" of the difficulties her client, as a transgender woman, would have in prison.. The appellant is a prisoner in a women's prison. pending the appeal judgment.

Maltaa country with a shocking record of violating women's legal, political and social rights despite its vibrant feminist movement, introduced gender self-identification in 2015. In 2015, the Council of Europe passed a resolution on discrimination against transgender people in Europe. Maltese MEP Deborah Schembri was its proponent, and visited the UK on a fact-finding mission before drafting it. No feminist organisations critical of transgender ideology and self-identification were consulted, neither in the UK nor in Malta.Schembri is no friend of feminists: after major scandals involving male colleagues who were exposed for visiting brothels during state visits, she proposed new, stricter privacy laws to protect them. Schembri is no friend of feminists: after major scandals involving male colleagues who were exposed for visiting brothels during state visits, she proposed new, stricter privacy laws to protect them. In Malta, trans prisoners are housed with people of the sex they identify with, and the prisoners have no voice or opportunity to express themselves. The same applies in Denmark and Norway.

Rosa Freedman, professor of law at the University of Reading, points out: 'There are only six million people in Denmark. And women's rights and the women's movement are central in that society. Yet there are already cases of violence against women and rape by self-identified 'women' who have gained access to women's spaces. The same applies to Norway.

In June 2016, Norway allowed anyone to change their legal gender without the requirement of a diagnosis, medical reports, or proof of having lived as the opposite sex for a certain period of time. The age limit has been set at six years, provided that the child has at least one parent's consent. As trans woman Debbie Hayton learned from talking to women in Norway shortly after the law was passed, a woman was reported to the police for asking a male (with visible male genitalia) to leave the women's changing room in a gym. The case dragged on for more than two years until the woman was finally cleared of harassment on appeal, but only because the court decided that her comments were not directed at the trans woman. Not only can self-declared trans women use all women-only facilities, but they are also protected from 'transphobic hate speech' that could include 'misgendering', with a maximum penalty of three years in prison. Hate legislation does not protect biological women.

In the UK, theNHS issued a guide according to which female patients who oppose trans women sharing their hospital wards should be treated as racistsignoring patients' rights to privacy and dignity.

Gender and sex are confused in official data collections, which means that statistics on women as a distinct sexual class, such as crime data, risk being compromised. A growing body of evidence shows that the inclusion of trans women in certain women's sports increases the risk for women, or that it is inherently unfair because of the advantages presented by male anatomy and physiology even when testosterone is suppressed.

The testimony of the Employment Lawyers Association to the recent House of Commons Women and Equalities Committee on gender equality highlights some of the considerable uncertainties in British labour law. It is unclear, for example, if and when a woman can cite a trans woman as a yardstick when claiming sex discrimination. This is particularly important in equal pay women cannot present them without mentioning a man for comparison.

Having listened to the women and having 'opened their eyes', Wintemute has moved so far away from its original position that it now wonders whether the GRA and previous laws in Europe should have been approved. "The arguments given at the time were that people had done everything they could to appear to be of the opposite sex, but the fact that their appearance did not match their official documents put them at risk of violence, harassment or discrimination," he says. Instead of changing a person's legal sex, the law could have simply sought to protect people from harm caused by the difference between their legal sex and their appearance, he suggests. "This would remove much of the current conflict, as it would affirm the birth sex of trans people as their legal gender, while ensuring their protection from discrimination based on appearance or gender non-conforming behaviour." She adds: 'The sex of birth is less important now, with same-sex marriage and equal retirement age for all. But in my opinion it is not an irrelevant detail and should not automatically be 'superseded' by gender identity in single-sex situations."

It is a view that is gaining weight among activists who claim that women's rights organisations were not consulted before the GRA was approved. A campaign website was set up in January, www.repealthegra.orgto argue that people should not be allowed to 'misrepresent their birth sex'.

On the contrary, Amnesty International has remained steadfast in its refusal to recognise any conflict between women's and transgender rights. Instead, it apparently adopted the point of view of the activist group Transactualaccording to which even acknowledging the existence of a clash is evidence of transphobia. In 2018, while urging a positive response to the government's proposals to remove the requirement for a medical diagnosis prior to a legal sex change, Amnesty said: "Trans women are women and there is no risk to single-sex services. You may have heard discussions in the media and on social media that seek to pit trans rights against women's rights. These discussions are informed by prejudice and misinformation."  Ignoring the growing evidence of women's rights violations arising from self-IDHe said: 'There is no evidence from countries implementing a system of self-determination that it has had an impact on anyone except trans people themselves.

Towards the end of 2020 Amnesty International Ireland signed a letter calling on politicians to "no longer provide legitimate representation" to those who "oppose transgender people's right to self-identification". The letter prompted condemnation from the granddaughter of the founder of Amnesty. Wintemute struggles to understand the position of Amnesty. "I agree with the vast majority of the demands of the trans rights movement. But there are limits when these demands concern the rights of others."

Vitit Muntarbhorn, an international human rights expert and professor of law at Chulalongkorn University in Bangkok, is another of the original authors of the Principles. But unlike Wintemute he remains steadfast in his support for the notion of 'gender identity' and does not accept that this has led to an erosion of women's rights based on gender. "When you talk about trans women in bathrooms, well, many countries don't have bathrooms, so how can that be a primary concern?"

Whether the Yogyakarta Principles attract more attention may depend on the courage of other signatories to stand by Wintemute and admit that they may have been wrong. Others were contacted for comment. We were unable to reach Correa. Some other signatories responded that they had not given the issue sufficient thought. Perhaps they should have considered the implications for women at the time. But then, women's rights have always been a secondary thought.

Julie Bindel

For the original article click here (translation Elisa Vilardo)

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