In another bleak week for US and British politics – a week when it became clearer than ever that we are being led into an economic and moral abyss – there were two images, one from either side of the Atlantic, that offered a sliver of hope.
The first was of a middle-aged male couple, sitting in the public gallery at Holyrood, their faces awash with emotion, as First Minister Nicola Sturgeon offered an unequivocal apology to homosexuals convicted of sexual offences that are no longer illegal.
The second was of Danica Roem falling to her knees with joy after becoming the first openly transgender candidate to be elected to a state legislature in America. Roem’s triumph was doubly significant because Bob Marshall – the man she beat to the seat in the Virginia House of Delegates – is a self-proclaimed homophobe who was trying to introduce a law that would have forced transgender people to use the toilets that tallied with the gender on their original birth certificate. “To every person who’s ever been singled out, who’s ever been stigmatised, who’s ever been the misfit, who’s ever been the kid in the corner, who’s ever needed someone to stand up for them when they didn’t have a voice of their own: this one’s for you,” Roem told a crowd of cheering supporters after the result was announced.
For those of us brought up in the 70s and 80s when the merest hint of ambiguity over sexuality or gender was an invitation to playground or workplace abuse, such successes – however limited and however belated – are still remarkable; they are proof the world continues to move forward, even as dark forces try to pull it back into the past.
Last week, the Scottish Government, which has led the way on many LGBTI issues, went a step further, proposing a “self-declaration” system for gender recognition that would allow anyone over the age of 16 to legally change from male to female or vice versa without the current requirement of a medical diagnosis and without having to have lived as their chosen gender for two years. All they would have to do would be to sign a statutory declaration in front of an official that they understand the consequences of their actions, and intend to live in their acquired gender for the rest of their life.
The proposals would also create a third gender – non-binary – for people who do not regard themselves as either male or female. The measures would overhaul a process so complex and demeaning that many transgender people choose not to put themselves through it.
To anyone who watched the recent documentary on transgender cyclist Philippa York, this change might seem like a no-brainer. York, now 59, said she would have sacrificed the glory of winning the Tour de France for the chance to have transitioned as a teenager. Surely anything that makes the lives of people like York less stressful is to be welcomed.
And yet, the Scottish Government’s consultation is a potential flashpoint both for feminists who fear making it easier to change from male to female could jeopardise women-only spaces and for religious groups who view the government’s willingness to explore the idea of extending the self-declaration process to children as young as 12 as a potential erosion of parental rights.
When Theresa May and Jeremy Corbyn backed the reform of the Gender Recognition Act 2004 in England earlier this year, the writer Sarah Ditum described the move as a “cheap form of progressivism”: an alternative to investing hard cash in improving under-performing NHS services for trans people.
Alluding to those who self-identify as the opposite gender without altering their physical appearance, the deputy editor of the New Statesman, Helen Lewis, added: “In this climate who would challenge someone with a beard exposing themselves in a female changing room?”
In Scotland, the debate on transgender issues is not as fractious. This is largely because trans organisations such as the Scottish Trans Alliance have worked closely with feminist organisations such as Engender to try to find common ground.
The sense up here seems to be that self-declaration poses no threat to women-only spaces. Groups such as Rape Crisis and Women’s Aid already work with those who identify as female without demanding to see a birth certificate. Though they are legally entitled to discriminate on the basis of someone’s sex at birth, there have so far been no instances where this has proven necessary.
Nevertheless, there are potential pitfalls and it makes sense to ensure these are fully considered before the legislation is updated. One is the question of what happens to transgender people in prison. Allowing transgender people to self-declare would have made life easier for those like Joanne Latham and Vicky Thompson, who killed themselves after being accommodated in all-male prisons in 2015. Neither of them had a gender recognition certificate.
But it also opens the door to male opportunists who would prefer to serve out their sentences in an all-female facility. If that sounds unlikely, then consider the case of convicted killer Paris Green (formerly Peter Laing) who had to be moved from the female to the male wing of Edinburgh Prison because she kept having sex with female inmates.
In another case, Jessica Winfield who, as Martin Ponting, raped two young girls, was moved to a women’s jail after starting gender reassignment treatment on the NHS despite still having a penis.
There is also a risk some agencies will decide gender is no longer relevant and stop collating gender-disaggregated data. Yet such information is vital to monitor things like the gender pay gap and violence against women, and thus to shape policy and services.
The question of age seems, for the moment, at least, to be a red herring; though they are willing to explore the idea, ministers do not currently back the extension of the right to self-declare to prepubescent children. And even if they did, we are only talking about the ability to change what it says on their birth certificate – an administrative procedure that could be reversed at any point, not the off-setting of puberty or irreversible surgery.
These caveats are not being offered as justifications for not pressing ahead. The experiences of Roem and York testify that changing gender is never easy; even today, it tends to be a difficult decision undertaken after much soul-searching, not something you would do on a whim.
Anything that will make that process less traumatic is worth doing. But festina lente. Let’s make sure there are no unexplored angles; no unforeseen consequences that might provoke a backlash and mar the steady progress being made towards LGBTI equality.