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Reversing trans rights would be a constitutional nightmare – hopefully that’s enough to stop the Government from trying

The last few years have been dire for British trans people, with a constant churn of governments proposing whatever policies they can think of to make our lives harder.

By Asher Gibson

The last few years have been dire for British trans people, with a constant churn of governments proposing whatever policies they can think of to make our lives harder.

But, ever since the Justice Secretary said plans to repeal the Human Rights Act 1998¹ would be scrapped, I’ve been reflecting on the big statutes that protect us and thinking it would be far harder to undermine them than they would admit.

That’s because they are bonded to something far more sturdy – the British constitution, a mosaic of parliamentary and judicial decisions, treaties, and traditions – including the European Convention on Human Rights.

We are bound to it three times over, as signatories, through the Human Rights Act, and the Good Friday Agreement, which states that parliament cannot pass laws in Northern Ireland contrary to it.²

Christine Goodwin³ used the convention to challenge the UK’s refusal to recognise trans people, a standard set in 1969 when British aristocrat Arthur Corbett nullified his marriage to transgender model April Ashley, on the basis that she was supposedly “physically incapable of consummating a marriage.”⁴ 

The European Court of Human Rights in Strasbourg ruled that this standard violated Goodwin’s rights on two counts. The first, that it violated her right to marry and found a family (Article 12) would not stand today under the Marriages (Same Sex Couples) Act 2013.⁵

But the British government agreed with the second – that refusing gender recognition could breach right to privacy (article 8) “in particular where [a person] suffered practical and actual detriment and humiliation on a daily basis.”⁴ This pushed Parliament to draft the Gender Recognition Act 2004⁶, allowing trans people to acquire a new gender “for all purposes.”⁷

The Equality Act 2010⁸ later absorbed the Sex Discrimination (Gender Reassignment) Regulations 1999⁹, defining ‘sex’ to include those with a Gender Recognition Certificate, and ‘gender reassignment’ to include those “proposing to undergo … undergoing or [having] undergone a process (or part of a process) … of reassigning … sex by changing physiological or other attributes of sex.”

This protected us from discrimination, including in single-sex spaces where provisions are not “limited” or “proportionate means of achieving a legitimate aim.”¹⁰

Conservative leaders suggested leaving the convention since 2015¹¹, with hostility growing ever since Strasbourg stopped the first flight of asylum seekers to Rwanda last year.¹² ¹³

This would be a disaster, as it grounds both Goodwin and the GRA which, for all its faults, stops the government from adopting a “biological” definition of sex in the Equality Act¹⁴ (which probably means sex assigned at birth.¹⁵)

Since the Strasbourg court ruled article 14 – discrimination – also applies to “sexual …[and] genetic characteristics”¹⁶ after Caster Semenya challenged World Athletics earlier this year,¹⁷ the convention could also offer even more protection than before.

Luckily, we cannot leave without breaking the Good Friday Agreement¹⁸, trashing Britain’s diplomatic reputation particularly across the EU – our largest trading partner¹⁹ and a close security ally²⁰ – and in which Ireland is a member. This would have economic consequences that any sensible country facing the slowest economic growth in the G7 would avoid like the plague.²¹

Of course, this assumes the country has sensible leaders. Nonetheless, if they really want to drag us down, they might just have to take the country with them.

Footnotes

  1.  Alex Chalk, Topical Questions: Volume 735, debated Tuesday 27 June 2023 (Hansard), https://hansard.parliament.uk/Commons/2023-06-27/debates/FE807865-51C0-4E01-AE13-42E219714C99/TopicalQuestions#contribution-FB5FC112-9572-4AB5-843B-D1061BC45DDC
  2.  The Belfast Agreement: An agreement reached at the multiparty talks on Northern Ireland, April 1998 (Archived by GOV.UK), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1034123/The_Belfast_Agreement_An_Agreement_Reached_at_the_Multi-Party_Talks_on_Northern_Ireland.pdf
  3.  Christine Goodwin v. The United Kingdom [2002] App. No: 28957/95, European Court of Human Rights/Cour Européenne des droits de l’homme, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-60596%22]}
  4. Corbett v. Corbett (otherwise Ashley) [1970], (Archived by Press for Change), http://www.pfc.org.uk/caselaw/Corbett%20v%20Corbett.pdf
  5.  Marriage (Same Sex Couples) Act 2013, https://www.legislation.gov.uk/ukpga/2013/30/contents/enacted/data.htm
  6.  Lord Geoffrey Filkin, Gender Recognition Bill Hl: Volume 655, debated Thursday 18 December 2003 (Hansard), https://hansard.parliament.uk/lords/2003-12-18/debates/1bacc5de-e32f-4556-8cb3-0ca85c51fc63/GenderRecognitionBillHl
  7.  Section 9.1, Gender Recognition Act 2004, https://www.legislation.gov.uk/ukpga/2004/7/section/9
  8.  Equality Act 2010, https://www.legislation.gov.uk/ukpga/2010/15/contents; protected characteristics are defined under Chapter 1, ‘gender reassignment’ under section 7 and ‘sex’ under section 11.
  9.  Regulation 2, Sex Discrimination (Gender Reassignment) Regulations 1999, https://www.legislation.gov.uk/uksi/1999/1102/regulation/2/made
  10.  Equality Act 2010: Schedule 3, Part 7, 26. 1. B, https://www.legislation.gov.uk/ukpga/2010/15/schedule/3
  11.  Matt Honeycombe-Foster, 5 times Tory prime ministers talked up quitting the ECHR — and then didn’t, Politico.eu, 9 March 2023, https://www.politico.eu/article/tories-prime-minister-quit-echr-david-cameron-theresa-may-boris-johnson-liz-truss-rishi-sunak/
  12.  Registrar of the European Court of Human Rights, The European Court grants urgent interim measure in case concerning asylum seeker’s imminent removal from the UK to Rwanda, 14 April 2022, https://www.lawgazette.co.uk/download?ac=104566
  13.  Lord Foulkes of Cumnock, European Court of Human Rights Volume 824: debated 5 September 2022, https://hansard.parliament.uk/Lords/2022-09-05/debates/2AE5FD9E-D793-4B63-839A-B1369F825911/EuropeanCourtOfHumanRights
  14.  Legislative Definition of Sex: Volume 734, debated 12 June 2023 (Hansard), https://hansard.parliament.uk/commons/2023-06-12/debates/F74BD8CC-4807-46F4-AA51-5402B7CFE8F9/LegislativeDefinitionOfSex#:~:text=A%20change%20to%20the%20Equality,humiliating%20and%20damaging%20to%20them.
  15.  The conversation between TransActual Chair Helen Belcher, Chief Executive of the Equality and Human Rights Commission Marcial Boo, and Melanie Field, was published by jane fae. jane fae, Gender: the EHRC explain, (Medium) 6 April 2023, https://jane-67706.medium.com/gender-the-ehrc-explain-a17cd4332b5
  16.  Registrar of the European Court of Human Rights, Discrimination against international-level athlete who was not afforded sufficient procedural safeguards when challenging World Athletics regulations, 11 July 2023, https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7701636-10631196&filename=Judgment%20Semenya%20v.%20Switzerland%20-%20Discrimination%20against%20international-level%20athlete%20who%20was%20not%20afforded%20sufficient%20procedural%20safeguards%20when%20challenging%20World%20Athletics%20regulations.pdf
  17.  Affaire Semenya c. Suisse (Semenya v. Switzerland ) [2023] App. No. 10934/21, European Court of Human Rights/Cour Européenne des droits de l’homme, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-225768%22]}
  18.  The government has been challenged heavily for this fact. See: Martin Docherty-Hughes, European Convention on Human Rights: Volume 728, debated 21 February 2023, https://hansard.parliament.uk/commons/2023-02-21/debates/EDF76124-7FA0-4922-8D50-6B69C7F01BE3/EuropeanConventionOnHumanRights
  19.  Department for International Trade, Official Statistics: Trade and investment core statistics book, 21 June 2023, https://www.gov.uk/government/statistics/trade-and-investment-core-statistics-book/trade-and-investment-core-statistics-book
  20.  Parliament, ‘Chapter 3: The UK in the world: allies and adversaries’ in ‘UK defence policy: from aspiration to reality?’, https://publications.parliament.uk/pa/ld5803/ldselect/ldintrel/124/12406.htm
  21.  Daniel Harari, Research briefing: GDP – International Comparisons: Key Economic Indicators, House of Commons Library, 30 June 2023, https://commonslibrary.parliament.uk/research-briefings/sn02784/#:~:text=The%20IMF%20expects%20inflation%20rates,growth%20of%200.4%25%20in%202023.