Trans Rights and the Labour Manifesto
by Elaine O'Neill (@scattermoon) on November 25, 2019



Labour’s manifesto for the December 2019 election was released earlier this week. There was a great deal of interest - Labour under Jeremy Corbyn had been clear they were promising a more radical stance than anything we’d seen in recent years, taking the party back to the left away from the ghost of its New Labour days. Each page of the manifesto was subject to a great deal of scrutiny, especially by those with interests, both professional and personal, in specific areas, and in this light, trans people eagerly scanned the document for what changes Labour would provide to address the many issues faced by the UK’s increasing trans population.

One section caught trans eyes, and not in a good way.

(Labour will) ensure the single-sex based exemptions contained in the Equality Act 2010 are understood and fully enforced in service provision.

This seems reasonable at a glance, but the phrasing and the details of the Equality Act gave cause for doubt. To explain why, it’s helpful to explain about the background of the Equality Act 2010, and also the Gender Recognition Act with which it is frequently (and often maliciously) conflated.

The Gender Recognition Act 2004

The Gender Recognition Act 2004 was a gamechanger for UK trans people at the time, finally giving a legal pathway for gender recognition, albeit in a draconian and unworkable fashion involving a shadowy Gender Recognition Panel, none of whom you got to meet, deciding whether you should be allowed to have your gender legally changed, and even then only with a large bundle of evidence, whereby you effectively had to fit into the traditional transitioning transsexual box to have a chance. And then when if you succeeded, having paid for the privilege, your name got added to a government list, and you received a Gender Recognition Certificate, which in theory entitled you to legal protection, but in practice quickly became regarded as license for being trans, despite that technically being illegal. It was a bad compromise at the time, and it has only gone on to be increasingly outmoded, inaccessible, inflexible, and for increasingly negligible benefit. The recognition of a need to do away with this system was a theme in the Transgender Equality Inquiry and led to proposals for GRA reform, which is what in turn led to a government consultation, which in the changed and charged environment of 2018-19 led to transphobes whipping up moral panic.

The backlash to Gender Recognition Act from transphobic groups reform was substantial, though as often with moral panics, it was rooted in misinformation and disinformation. One such tactic was to frequently conflate plans to reform the GRA with plans to change the Equality Act of 2010, which was in turn misinterpreted in order to create sensationalist headlines, leading to a renewed focus on the Equality Act in the run up to this election.

The Equality Act 2010

The Equality Act at its core prevents discrimination by protected characteristics, including sex and ‘gender reassignment’, a clumsy way of indicating trans status without relying on medical progress or indeed whether the individual had a GRC. This means that you can’t have single-sex spaces (which de facto discriminate against other sexes) without an exemption, and exemptions are listed. These are what the Labour manifesto appears to be referring to. As it would in turn be discrimination against the ‘gender reassignment’ characteristic to deny trans people access to these single-sex exemptions, trans people are included as their stated gender, so a “women only” space granted a single-sex exemption under the Equality Act would allow trans women to access it.

There are however also exemptions also granted for ‘gender reassignment’ discrimination. Lobbying from groups concerned about trans women being able to access spaces like women’s shelters led Schedule 3 Section 28 which allows for ‘gender reassignment’ discrimination in regards to single-sex exemptions, although only “if the conduct in question is a proportionate means of achieving a legitimate aim”. While in theory this was designed to allow women’s shelters to turn away trans women, in practice this has increasingly been viewed as not a problem by the institutions in question. Furthermore, the EHRC’s Statutory Guidance on the Equality Act supports that trans people are not excluded by the same-sex exemptions and the exemptions for ‘gender reassignment’ are to be used “as restrictively as possible” and on a “case by case basis”. This has led to the ‘gender reassignment’ exemptions being seldom legally enforced, but case law could override this, and this is one reason why trans people have been calling for greater legal protection in this regard.

As mentioned before, transphobes and transphobic pressure groups have deliberately conflated the single-sex exemptions and ‘gender reassignment’ exemptions of the Equality Act to claim that the law ought to restrict trans people accessing single-sex spaces that do not correspond to their sex assigned at birth. This dubious interpretation flies in the face of the EHRC guidance, effectively treating the ‘gender reassignment’ exemptions as to be applied as much as possible, rather than as restrictively as possible, and acting as though the single-sex exemptions count as a ‘proportionate means of achieving a legitimate aim’ to justify the discrimination against trans people, which was never their aim - if trans people were meant to be excluded by the single-sex exemptions there would not have been a need for separate exemptions for ‘gender reassignment’ as it would have been understood that any single-sex space overrides trans people’s legal protections to be treated as their stated gender. This is plainly not the case, as the EHRC agrees.

Transphobe groups have been lobbying service providers to follow this false interpretation - as recently occurred when Center Parcs claimed they would not allow a trans women to use their female changing rooms. The possibility of the legal judgement in that case overruling the EHRC Statutory Guidance on the Equality Act has been a cause for concern amongst many UK trans people, and it is with this background that we approach the Labour Manifesto promising to ‘ensure the single-sex based exemptions contained in the Equality Act 2010 are understood and fully enforced in service provision’. It can easily be read as a tacit endorsement of excluding trans people from the single-sex based exemptions, and indeed, the phrasing was understood this way by trans-exclusionary groups such as the Mumsnet forums.

So Where do Labour Stand?

There was some confusion in this regard however, for as much as that paragraph felt like a transphobe dog whistle, another part of the manifesto stated:

Labour is committed to reforming the Gender Recognition Act 2004 to introduce self-declaration for transgender people, but we are not complacent about the culture shift required to make LGBT+ inclusivity a reality.

This claim seemed to indicate that Labour were on board with upholding trans rights, if coaching it in the cautionary language of ‘culture shift’ which indicates that while they were on board, they weren’t planning on setting sail anytime soon. The Gender Recognition Act is sorely in need of reform, and allowing trans people to self-declare is a way of bypassing the whole thing and following the model utilised successfully in countries such as Ireland, where the doomsday scenarios transphobes have warned about if self-declaration is allowed simply haven’t happened. It’s what we wanted, essentially, though it still has significant problems, especially the exclusion of non-binary genders, and ideally, we’d not need the concept of legal gender at all.
Labour LGBT+ have issued a statement since the release of the manifesto attempting to address our concerns.

We want to highlight and echo the words of Dawn Butler that trans women are women, trans men are men, and trans people deserve unconditional solidarity and support for their right to exist in the gender with which they identify…we will reform the Gender Recognition Act, introducing self-declaration and changing some of the wording in the Equality Act 2010 to ensure they protect trans people by changing the protected characteristic of ‘gender assignment’ to ‘gender identity’ and removing other outdated language.

While this has been a source of great relief, there’s still reason to be cautious: Labour LGBT+ are not the same thing as parliamentary Labour, and a party can disregard its own LGBT+ organisations as recently shown when the Liberal Democrats overruled their own when welcoming Philip Lee into the party. The Labour LGBT+ statement goes further than the manifesto but also it is not the manifesto - while they state that ‘LGBT+ Labour will continue to campaign for…the recognition of non-binary identities’, this is not reflected in the manifesto itself, and likewise the reassurance over the Equality Act pledge cannot be read as a correction to the manifesto. The phrasing around ‘single-sex exemptions’ is suspect enough that it may indicate support for transphobic groups within the Labour members who drafted the manifesto (and the ‘culture shift’ condition for self-declaration could have come from similar sources in order to allow that promise to be stalled). Anything not specifically written in the manifesto is malleable and open to external pressures.

So there are still reasons to be cautious. But despite all of this, there is an elephant in the room.

Trans Healthcare

The Trans Equality Inquiry that led to proposals for GRA reform has one issue that stood out more than any other: the absolute failure of trans healthcare in the UK and the urgent need to reform it. This was mostly overlooked in lieu of gender recognition which, while helpful, is nowhere near as pressing an issue for the majority of trans people in this country, who are being let down by inadequate service provision, a drastically-overloaded medical pathway that prioritises rigorous gatekeeping over accessing necessary medical resources, and medical staff who remain largely uneducated about trans people and their requirements. It is by no means an exaggeration to state that this is an emergency, and one that trans people and charities have been demanding be addressed for over a decade. This is due to a large number of factors ranging from hostility from those involved in the current system who benefit from its paternalistic gatekeeping focus, to fear of the transphobic lobby groups and their access to the media - when there are already frequent hitpieces in the Sunday Times claiming the current medical pathway is too liberal, people are reluctant to suggest improvements in fear of a moral panic whipped up against them. This is especially true for trans youth healthcare, where the gatekeeping is at its most severe, often effectively acting as a barrier to any trans youth being able to get so much as blockers, yet sensationalist headlines make out that kids are being transed by some supposed all-powerful trans lobby.

As such, it is profoundly disappointing that the Labour manifesto makes no mention whatsoever in regards to trans healthcare. As waiting lists at Gender Identity Clinics grow into being multiple years long, Labour have chosen to sweep the whole matter aside for now, dealing with the demands of trans health campaigners for such beneficial changes as over-the-counter HRT, informed consent, and an end to gatekeeping through abolition of the GIC by…ignoring the subject altogether. Whether this is out of an ignorance of the seriousness of the matter, support for the current broken gatekeeping model, or a fear of losing votes from transphobic pressure groups and their potential newspaper headlines, it doesn’t matter. Labour aren’t helping. And a recognition of your legal gender helps very little when you are in dire need of medical aid that you’re unable to access.

Conclusion

Ultimately, while the statement from Dawn Butler and LGBT+ Labour gives reason for hope, the manifesto itself is still hugely disappointing for trans people, with the potential dog whistle around the Equality Act giving cause for concern, and the lack of any mention of addressing the crisis in UK trans healthcare showing there is a reluctance to engage with the trans community’s most pressing demands. There’s something to work from, but there’s not enough, not yet.

Despite this, the manifesto as a whole is still light years ahead of the other parties, or indeed recent other Labour manifestos, and while trans healthcare is important, trans people do not exist in a bubble where only trans-specific issues matter. Trans people are at higher risk of unemployment, homelessness, and other issues which the Labour manifesto addresses elsewhere. With the stakes at hand this election, and the possibility of renewed austerity under a Conservative government set to double down on ‘divide and conquer’ tactics, one which is committed to furthering inequality right across the board, there really is no alternative in this regard.

Manifestos are promises but they are not the limits of what parties can achieve in power. The absences in the manifesto - on non-binary identities, on trans healthcare, on self-declaration without caveats - are also opportunities to organise and demand further change beyond the limits of election campaigns. A future Labour government can and should be challenged to address these issues, and they’ll be more likely to listen than the alternative. When you vote, you do not endorse a whole programme, but you choose who you want to be in power, and Labour, even with the flaws in the manifesto, offers a better position to start from when holding a government to account through campaigning for real tangible improvements such as free movement, and opposing reactionary measures like longer prison terms. Things which work to benefit us all, including our most vulnerable, which includes trans people, especially trans people of colour. We cannot look at any part of this in isolation.

Ultimately, in terms of trans rights, the manifesto is disappointing, but crucially, we can work on that beyond the limits of the election. To accept the flaws as set in stone is to surrender the hope of anything better, and with the prospect of five years of a Conservative majority government under Boris Johnson as the other outcome, hope seems a lot better than resigned despair.


author

Elaine O'Neill (@scattermoon)

Elaine O’Neill is a web developer, journalist, activist, DJ, and bad pun factory, with an interest in the media, public transport, trans rights, and the Eurovision Song Contest. She lives in South London with her cat but can often be found on trains around Europe.

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