When a Legal Fiction Becomes a Legal Lie

The History of How a Legal Lie Coerced Social Deception and Capitulation

April Ashley’s GRC where “gender” is fused with sex creating the legal lie “female.”

The Scottish Parliament’s celebrations for its Gender Recognition Reform Bill were short-lived. On 17 January 2023 the UK Government issued its statement of reasons on the use of section 35 of the Scotland Act 1998.

In brief, the UK Government was concerned that Scotland had over stepped and trespassed on a reserved matter—the Equality Act 2010—noting that the impact of the amendments in the GRR Bill remove any requirement for third party verification or evidence from the process. In the policy paper, “Statement of reasons related to the use of section 35 of the Scotland Act 1998” the Secretary of State “does not believe that the Bill retains or creates sufficient safeguards to mitigate the risk of fraudulent and/or malign applications and believes that the reformed system will be open to abuse and malicious actors." 

Around the same time that this constitutional crisis was brewing, a Scottish man was convicted of raping two women prior to his sic “transition” to “Isla Bryson” and is heading to the female prison estate. Reports of his conviction were often accompanied by a picture of Bryson in tight fitting leggings which allowed little doubt that Bryson’s “transition” to womanhood began and ended with a blonde wig, lipstick and mascara.

The response from Scottish politicians is simply that the Scottish prison estate can be trusted to make the right call on an individual risk assessment basis. Which prompted many on social media to comment that if a man convicted of raping two women and who retains his penis is NOT too risky for the female estate—well, just what does a man have to do to be excluded?

So how did we get here?

In a remarkably short space of time, a “woman” has gone from being an adult human female—sex—to a feeling in a man’s head—“gender identity.” The ground was laid far before the Gender Recognition Act 2004 but that was the first statutory expression in UK law of how men who want to be women would be recognised and protected. The GRA thus created the “legal fiction” that a man could be considered legally a woman if he got a Gender Recognition Certificate unless any of the exceptions in the GRA applied. The Equality Act recognises those exceptions; sports and other provision of single sex female spaces remains protected, if a proportionate means of achieving a legitimate aim

It has been recognised for a long time that sic “transsexuals” may not necessarily have surgical or medical treatment. An Interdepartmental Working Group on Transsexual People produced a report in April 2000 and concluded:

5.1.  Transsexual  people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change.

However, the Working Group estimated there were no more than 2,000 male to female “transsexuals” in the UK at the time of reporting and fewer than 400 female to males. Those who would “change sex” were seen as a very small cohort who could thus be accommodated fairly easily.

Further, although surgery was never a pre-requisite for a recognised change of legal sex we can see that the European Court certainly considered it as the journey’s likely end. See paragraph 78 in Goodwin V UK (2002):

In this case, as in many others, the applicant's gender re-assignment was carried out by the national health service, which recognises the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. 

A commitment to lengthy and painful surgery, the Court noted, was a convincing rebuttal to any claim that decision to “transition” was made “arbitrarily” or “capriciously.” It would also deal with some of the immediate problems in recognising a change of legal sex. See paragraph 91: “As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals.”

So the Gender Recognition Act 2004 was a product of the Goodwin judgment, where the UK was unanimously found in breach of the claimants’ fundamental human rights But it was drafted in an environment where the number of male to female “transsexuals” was small, and involved individuals who were keen to present as the opposite sex. The emphasis in various court judgments around the world, was very much on the anxieties and right to “personal freedom” of the “transsexual”; there appears to be no similar consideration of the impact on the safety and dignity of biological women who would be compelled to comply with the legal fiction that the male body next to theirs was really a woman.

This is perhaps understandable in light of the assumption that the numbers were small and the wish to present as the opposite sex was genuine. Fast forward to 2023 and those assumptions cannot stand. We no longer refer to “transsexuals,” which is considered an “old fashioned” and inappropriate term. We must now consider the rights of “transgendered” people and thus the replacement of “sex” by “gender identity” as the relevant protected characteristic is accelerated. The further away one moves from “sex” as an organising category—fixed at conception, immutable thereafter and creating immediately observable differences between male and female—to “gender identity”—subjective, amorphous, fluid, requiring no bodily modifications—the more difficult it is to say that we have created a balance between the rights of biological women and the rights of biological men to identify as women.

The recent census results also reveal a further difficulty. The old binary is gone. Men no longer wish to be women—they may wish to be non binary or another non specified kind of gender. People were asked: “Is the gender you identify with the same as your sex registered at birth?”

Across England and Wales, there were responses from 45.7 million people (94.0% of the population aged 16 years and over). A total of 45.4 million (93.5%) answered “Yes”, indicating that their gender identity was the same as their sex registered at birth. A total of 262,000 people (0.5%) answered “No”, indicating that their gender identity was different from their sex registered at birth. Within this group:

• 118,000 (0.24%) answered “No” but did not provide a write-in response

• 48,000 (0.10%) identified as a “trans man”

• 48,000 (0.10%) identified as a “trans woman”

• 30,000 (0.06%) identified as non-binary

• 18,000 (0.04%) wrote in a different gender identity

The landscape has utterly changed from the 2000 report, where only about 2,000 sic “transwomen” and 400 sic “transmen” were estimated to exist. But the language used to promote the rights of such individuals to their own “personal freedom” remains unchanged, and the impact on women continues to be ignored by many. This is despite the pressures on women becoming ever more serious and potentially harmful by the increasing numbers of the cohort who reject “sex” in favour of “gender identity.”

Isla Bryson has been warned he faces a “significant custodial sentence” for raping women. He is currently held in Cornton Vale women's prison in Stirling. I am sure the other female prisoners are not so much concerned about Bryson’s claimed “gender identity” but more with the unmistakable bulge in his tight pink leggings.

The arguments to support the creation of a “legal fiction” that a man could become a woman in 2004 may have reflected the situation of those times. But this legal fiction has now become a harmful and unsustainable legal lie which is going to put women and girls at risk of serious harm. The balance required to protect and respect the personal freedoms of all is now seriously out of kilter and must be restored before even greater harm is done. Sex does not always matter—but when it does matter, it really matters. Societies will ignore this at their peril and at the cost of the dignity and safety of women and girls.