Schrödinger’s legal sex

Hundreds of people in bright colours, faceprint and flags around one of the shallow pools at Holyrood

The political environment for trans people in the UK in 2023 is profoundly unsettling. It has been fraught for quite a few years now, but things seem to be getting still worse, as an ever more authoritarian and brazenly corrupt Tory government panders to ever more emboldened transphobes. Trans and non-binary people in the UK are facing a great deal of uncertainty.

In the last ten months of what has become known as the ‘culture war’ (garnished with a couple of personal items):


5 September 2022 🧬. Doubtless aware of the imminence of reform of the Gender Recognition Act 2004 in Scotland, Maya Forstater, a transphobic grifter who deserves no introduction, petitioned the UK government to ‘Update the Equality Act [2010] to make clear the characteristic “sex” is biological sex’. Such a change (not really a clarification) would inevitably undermine the Gender Recognition Act.

9 September 🧜‍♀️. A tribunal hearing began into the June 2021 appeal by Mermaids against the (frankly laughable) decision by the Charity Commission for England and Wales to register anti-trans hate group LGB Alliance as a charity.

25 October 🏴󠁧󠁢󠁳󠁣󠁴󠁿. Stage one of the Gender Recognition Reform (Scotland) Bill, agreeing on general principles, was passed by 88 votes to 33.

8 November 🧜‍♀️. The Mermaids v Charity Commission/LGB Alliance tribunal hearing concluded, with a ruling to be made at a later date.

10 November 🧬. A counter-petition to Maya Forstater’s was created, urging the UK government to ‘Commit to not amending the Equality Act’s definition of sex’.

22 November 🏴󠁧󠁢󠁳󠁣󠁴󠁿. The Gender Recognition Reform (Scotland) Bill passed stage two, in which a committee dealt with proposed amendments to the Bill as originally introduced.

22 December 🏴󠁧󠁢󠁳󠁣󠁴󠁿. A full six years after the Scottish Government first proposed reform of the UK’s Gender Recognition Act 2004 – six years in which two public consultations were held (in 2017 and 2019), six years in which trans people were vilified in the UK media for daring to exist, six years in which the modest proposals for reform were watered down considerably, hurting trans under-16s and non-binary people most – the Scottish Parliament finally passed the Gender Recognition Reform (Scotland) Bill by 86 votes to 39.

Every effort had been made to ensure that the Bill was drafted in such a way as to fall squarely within Holyrood’s competence, as Cabinet Secretary for Social Justice Shirley-Anne Somerville later noted: ‘The UK Government undertook to work closely with the Scottish Government on the implementation of the Scottish proposals, “especially on the implementation of its proposals where powers are not devolved”, and on “mutual recognition of certificates issued in different parts of the UK across the UK.”’ (Official Report of the Scottish Parliament, 19 April 2023, col. 27)

It’s worth noting that in 2018, Westminster ran its own consultation on reform of the Gender Recognition Act, but in the face of popular support for reform (just as there was in Scotland), the idea was thrown out in September 2020 by a certain Liz Truss, then Minister for Women and Equalities. Instead, she reduced the administrative fee for application for a gender recognition certificate from £140 to £5 (woo).


17 January 2023 🏴󠁧󠁢󠁳󠁣󠁴󠁿. Secretary of State for Scotland Alister Jack, having given just one day’s notice (contrary to reasonable expectations), laid a Section 35 order before the UK parliament, effectively vetoing the Scottish Parliament’s legislation. ‘Section 35’ here refers to Section 35 in the Scotland Act 1998 (which established the present Scottish Parliament).

The post of Secretary of State for Scotland, within the UK cabinet, is a relic of Scotland’s pre-devolution government, and Alister Jack’s unprecedented use of this order undermines Scotland’s democratically elected parliament. His invocation of Section 35 prevents the Presiding Officer of the parliament from seeking ‘royal assent’ *eye roll* for the Gender Recognition Reform (Scotland) Bill.

25 January 🧬. The UK government responded to the petition in favour of retaining the existing wording of the Equality Act 2010: ‘Changes to the Equality Act are not necessary.

26 January 🧬. The UK government responded to Maya Forstater’s petition: ‘Further clarification [of the Equality Act] is not necessary.

12 March 🏳️‍🌈. Kitty proposed to me. I said yes! (What she proposed is still up for debate, but probably civil partnership, at some point in the future!)

13 April 🏴󠁧󠁢󠁳󠁣󠁴󠁿. Scottish ministers petitioned the Court of Session for judicial review of the Section 35 order. As Scottish Green MSP Maggie Chapman asked in Parliament the following week:

‘The cabinet secretary has made clear that there was no meaningful engagement by UK Government ministers on the GRR bill and no amendments that would satisfy them. Does she agree that that is a very clear indication that the UK Government is acting in bad faith, with no intention of genuine discussion and against the principles of devolution, and that the section 35 order is being used as a weapon in the culture war against trans and wider LGBTQIA+ rights?’

Shirley-Anne Somerville responded that it was ‘very definitely an example of the UK Government acting in bad faith’ with ‘no intention on its part to have genuine discussion on the issue’, and that MSPs ‘can draw their own conclusions about why that might be.’

20 April 🧬. Maya Forstater’s petition closed after 227 days, with 109,462 signatures. (I’m not quite sure why the six-month limit mentioned on the petition site was exceeded by a month and a half in this case, but I’ll refrain from spreading rumours about it being deliberate.)

15 May 🧬. The counter-petition closed after 186 days (closer to the supposed six months), with 138,886 signatures.

12 June 🧬. This was the date chosen by the House of Commons Petitions Committee for a parliamentary debate on Maya Forstater’s petition, taken in conjunction with the counter-petition. A date right in the middle of Pride month. The perfect time of year for MPs to froth at the mouth about ‘biological sex’, ‘same-sex attracted people’, ‘females’ and ‘women’s spaces’.

I was going to write a whole blog post about this debate, held in Westminster Hall, and went so far as to colour-code the text of the entire thing (taken at first from Hansard, and then corrected to be closer to what was actually said by MPs – I was astonished at the disparity in places).

There were, to be fair, a number of very positive and reassuring contributions, starting with Layla Moran (Liberal Democrats) making an early intervention as a solid trans ally, and later speeches by Hannah Bardell (Scottish National Party), Angela Eagle (Labour), Nia Griffith (Lab.), Luke Pollard (Lab./Co-operative Party), Peter Gibson (Conservative), Kirsty Blackman (SNP) and Kirsten Oswald (SNP).

There was more nastiness than allyship though, with variously transphobic speeches from Tonia Antoniazzi (Con.) (who framed the debate), Ranil Jayawardena (Con.), Joanna Cherry (SNP) (who is sadly my own MP), Miriam Cates (Con.), Angela Richardson (Con.), Jess Philips (Lab.), Peter Bottomley (Con.), Rosie Duffield (Lab.), Nick Fletcher (Con.), Andrew Lower (Con.), Tim Loughton (Con.), Jonathan Gullis (Con.), Neale Harvey (Alba), Caroline Ansell (Con.), Anna Firth (Con.) and Maria Caulfield (Con.).

But I don’t have it in me to say anything more about the debate, which should in my view never have happened.

24 June 🏳️‍🌈. I felt able to take part in my first Pride since the pandemic began, and marched in Edinburgh with friends from Loud & Proud Choir, who I’ve definitely missed singing with over the past three years. (I’d have loved to have had Kitty alongside me, but crowds are even less her thing than they are mine.) My newly dyed hair wasn’t exactly compatible with the scorching weather that day, and I ended up with a newly dyed face to match! As always, Pride is part celebration, part protest – and there are good reasons for both.

6 July 🧜‍♀️. The ruling of the Mermaids v Charity Commission/LGB Alliance tribunal was finally made public (in PDF). Many of the usual ‘gender-critical’ organisations have been crowing about LGB Alliance’s defeat of Mermaids. But it’s a pretty hollow victory, if you read the judgment by Lynn Griffin and Joseph Neville.

For legal reasons I don’t fully understand, Mermaids’ appeal against the Charity Commission’s decision would ordinarily have been considered in two stages (paragraph 13 of the ruling):

  1. Did Mermaids have the legal right (‘standing’) to challenge the decision?
  2. If so, did LGB Alliance meet the requirements to be considered a charity?

It had already been decided that these two questions rested on a similar body of evidence (para. 14), and so both would be considered. Furthermore, a judgment in principle on the second would be given regardless of the answer to the first (para. 15).

The appeal was dismissed on the grounds that there is no evidence that Mermaids had been ‘personally’ affected by the decision to grant charitable status to LGB Alliance. That is, it was essentially dismissed on a technicality.

As far as the second question was concerned, despite having spent ‘significant time’ in their deliberations, the two judges found (para. 15) that they were unable to reach agreement. Since the appeal was dismissed anyway, they resolved not to share their individual opinions. Nevertheless, much of the evidence, which to my mind paints LGB Alliance in a very poor light, is clearly set out in paragraphs 39 onwards.

Regardless of the actual outcomes of the Mermaids tribunal (which if anything was critical of LGB Alliance’s conduct) and the Westminster Hall debate (which involved no vote and will have no binding effect on any legislation), the very public airings of transphobic views they featured will only have emboldened others to be transphobic without fear of reprisal. Alister Jack’s use of the Scotland Act’s ‘nuclear option’ to derail the Scottish legislative process will, I fear, have a similar effect.

These all add to the constant othering of trans people by UK media and politicians. For instance, just last month, Prime Minister Rishi Sunak was covertly recorded mocking trans women while partying with fellow Tory MPs. It’s quite scary to be trans at the moment (if not yet quite as scary as in some US states, which I’ve no doubt some here would be keen to emulate).

Much as I’d have preferred the state simply not to record the sex, or gender, of its citizens – just as we don’t record people’s race (here in the UK anyway) – I realise it could be some time before we get there. And so we need some means of letting people change their legal sex, and the Gender Recognition Act 2004 does that.

It does it at a price though, a discriminatory price that cis people don’t have to pay. And I don’t just mean the £5 administrative fee. No, we have to have psychiatric evaluations and amass huge quantities of medical and other documentation, much of which is expensive to obtain. Then we have to wait for months while an anonymous gender recognition panel assesses our application. Come to think of it, there’s a lot of waiting if you’re trans.

Oh, and even if we do get a gender recognition certificate and update our birth certificate, we’re placed on a register of trans people, which links our original birth certificate with our new one. I’m sure you can understand, in the light of history, why that might not appeal.

Still, I have personal reasons for wanting a gender recognition certificate now. Without one, I can’t enter into a civil partnership with Kitty. And if I don’t get one before I file for divorce – I’ve been separated for five years, so that should just be a formality – I’ll have to take a divorce certificate with my deadname on it to the registry office when Kitty and I make our partnership official. I really, really don’t want to do that.

I’m sure there are a lot of other trans and non-binary people who had pinned their hopes on being able to access a more humane gender recognition process in the near future. However, according to Scottish Trans, the Section 35 appeal process – with possible counter-appeal and counter-counter-appeal – could take months if not years! It now looks likely that the quicker option for those of us who expect to divorce, enter a civil partnership, get married (or, you know, die) will be to put ourselves through the existing UK process.

And who knows what the UK will consider our legal sex to be at the end of that process! At the moment we’re stuck in limbo, in a state of permanent uncertainty, much like Schrödinger’s cat.

One response to “Schrödinger’s legal sex”

  1. Brilliant Anna, thank you!