The most misunderstood debate in British politics
Gender Recognition Act reform doesn't do what you think it does
The Government yesterday announced that it will strike down Scotland’s controversial Gender Recognition Act (GRA) reform - which simplifies the process by which a transgender person can gain what is known as a Gender Recognition Certificate (GRC).
This is a niche, technical, and ordinarily uninteresting area of law, affecting a tiny proportion of the population. And yet it has become, in elite media circles at least, an enormous and intense row.
It is fair to say that most of the public is fairly bemused by it all. On trans issues polling has repeatedly shown general concern in areas like women’s sport, but a starting place of instinctive compassion and recognition of difficulty in day to day life for transgender Brits. When asked about these issues the public instinctively want to make the lives of transgender people less difficult. However, it’s nowhere close to a top priority.
But we’ll get on to the politics of all of this later. First I think it is overwhelmingly important to consider the facts of what GRC reform actually means. It is important to do so, because so many people I like and respect have got their facts and therefore their arguments on this matter very wrong.
Much of the debate has erroneously revolved around access to services, spaces, prisons, and even gender neutral loos. I’m afraid to say that those arguing about these situations are in a muddle about what a Gender Recognition Certificate actually is.
GRCs are not novel. You can apply for one today, and have been able to since 2004. And as the Gov.UK website helpfully tells us, obtaining a GRC allows a transgender person to do four things:
update your birth or adoption certificate, if it was registered in the UK
get married or form a civil partnership in your affirmed gender
update your marriage or civil partnership certificate, if it was registered in the UK
have your affirmed gender on your death certificate when you die
That’s it. Administrative issues like a trans person having their correct gender on their marriage or death certificate. A GRC does not alter an individual’s access to single sex spaces. For the avoidance of doubt, the government website goes on to make clear that trans people do not need a certificate to:
update your driving licence
update your passport
update your medical records, employments records or your bank account
Meaning that passports and drivers licences - the identification documents we use in everyday life - can register trans people’s new gender without the GRC process. GRCs do not magically alter access to gender segregated spaces. They are not identification documents.
Perhaps the easiest way to understand this all is that in order to obtain a GRC under the current UK rules, a trans person must be living in their new gender for two full years before being able to apply. That’s the state expecting two full years of accessing services aligned to their new gender, without a GRC.
The reforms the Scottish Parliament passed and that are this week being struck down by the UK government do not change the nature of a Gender Recognition Certificate. An English GRC would remain the same as a Scottish GRC - not a passport to any services, loos, or prisons - access to the first two of which is expected for those without a GRC, and the last of which is under a system of individual assessment.
What was being changed in Scotland was not what a certificate does but rather the process by which such a certificate could be obtained.
Specifically the changes are as follows:
reducing the period a trans person must have been living in their new gender in order to apply from two years to three months
the introduction of a further mandatory three month reflection period and a requirement for the applicant to confirm after the end of that period that they wish to proceed before a GRC can be obtained
the removal of the requirement for an applicant to provide medical reports with their application
applications being made to the Registrar General for Scotland rather than a Gender Recognition Panel
a new duty placed on the Registrar General to annually report, the number of applications for GRCs made, and the number of certificates granted.
lowering the age at which a trans person can apply for a GRC from 18 to 16
Now there are legitimate arguments to be had about each of these points. I, for example, think that 18 is a better age at which this technical and bureaucratic process might start. But on the fundamentals of all of this, polling has shows strong public support for the key elements of these changes, particularly reducing that two year mandatory waiting period to three months (or six months in total, including the post-application reflection period).
Again, a GRC does not alter access to things like changing rooms, toilets, or prisons. Remarkably, this is not widely understood - even at the highest levels of journalism in the UK. The supposedly gold standard BBC yesterday morning falsely spoke of an “implication for say male Scottish prisoners in English prisons” when there is no such implication.
A GRC does not affect the system of individual risk-based assessment that exists in both England and Scotland today. A violent criminal applying for a GRC - under a self declaration process or otherwise - would be no more likely to be placed in an inappropriate prison as a result of that GRC. Indeed in 2019, the guidance for prisons was updated - strengthening individual risk assessment procedures. This is not altered by Gender Recognition Act reform.
It appears that the government understands this. Prisons are not mentioned in the Secretary of State for Scotland’s letter. Nor are transgender loos. The reference to single sex spaces speaks of a nebulous “chilling effect”, not a change in their legal status. That is because, again, a Gender Recognition Certificate is not a passport to segregated spaces. In England, currently, people are told by the state that they must use said spaces for two years before they are allowed to apply for a GRC.
That’s the policy bit. Now on to the politics bit. How does a cultural war over these issues fare in and at the polls? Can, whatever the rights, wrongs, or even morality of it, Conservatives successfully utilise transgender issues come election time? Some voices at the top of government have allegedly been arguing that arguments over transgender policy can be used as a ‘wedge issue’ to drive people away from Labour, the SNP, and the Lib Dems, and towards the Tories.
The question is can this all be used as an election ploy? Let’s explore two recent case studies.
Australia is perhaps the closest foreign political system to ours. We share many of the same advisers. Every successful Conservative Party general election campaign of the last three decades has been run by an Aussie. First Lynton Crosby, then his protégé Isaac Levido. And my friend John McTernan - who served as Tony Blair’s Director of Political Operations then went on to become director of communications for the Australian Labor prime minister, Julia Gillard.
So it is incisive, perhaps, to see how a socially conservative position on trans rights worked out for former Aussie Liberal Party (Brits - read Conservative Party) Prime Minister Scott Morrison in last year’s general election. In short - it did not go well.
Morrison tried to utilise trans issues to open an electoral wedge on culture. He personally selected anti-trans activist Katherine Deves to stand in the Division of Warringah - the conservative leaning seat that had been held by former Aussie Prime Minister Tony Abbot, although at the time of the election was held by an independent - Zali Steggall.
Deves has not been a member of the Liberal Party until six months before the election. Morrison had to intervene in the process to select her, as party rules had said candidates must be members of the party for at least a year before selection. There was much reporting that the reason why Morrison chose to railroad the selection process was that he believed it would help his poll ratings chances among suburban women.
For her part, Deves didn’t appear to have much political ideology other than being obsessed by trans issues. She was known for her ‘gender critical’ activism alone. She said she found the pride flag “triggering”, falsely claimed “half of all males with trans identities are sex offenders”, falsely claimed that children were receiving gender reassignment surgery in Australia, and even went as far as claiming that her anti-transgender activism could be likened to opposing the holocaust.
Unlike when the North West Leicestershire MP Andrew Bridgen shared a message comparing the holocaust to the rollout of Covid vaccines and subsequently lost the Conservative whip, Morrison stood by Deves as a candidate. The implication was clear. He believed that there were votes to be won by waging a culture war on trans people.
Well how did that play out? Deves lost to Steggall - the independent who helped pioneer the Teal Independents movement of female ‘Blue-Green’ candidates who stood against Morrison’s party believe in conservative economic policy alongside a more liberal attitude to social issues and a focus on climate change.
And it wasn’t just in the Division of Warringah. Suburban voters across Australia fled Morrison’s party, which had been painted as backwards and out of touch particularly on climate and culture war issues. But we needn’t only look to our Australian cousins for recent examples of Twitter arguments not playing out well in the real world.
Over in the United States, last year three Republican gubernatorial candidates made their opposition to trans issues a cornerstone of their campaigns. In winnable states Kansas, Michigan, and Maine, the GOP’s nominees ran an extensive series of TV ads specifically targeting trans issues. In Kansas, nearly $3 million was spent on explicitly anti-trans ads in a two month period.
How did that all play out? Well centrist think tank Third Way has totted up the results:
these three Republicans [in Kansas, Michigan, and Maine] didn’t narrowly lose–they lost by healthy margins. In Kansas, a state that went for Trump in 2020 by more than 14 points, Democratic Governor Laura Kelly beat her Republican challenger by 2.1 points. And in the two swing states of Michigan and Maine, Democratic Governors Gretchen Whitmer and Janet Mills beat their Republican challengers by 10.6 points and 12.9 points, respectively. Clearly, these heinous ads didn’t appeal to the swing voters these Republicans needed to declare victory.
By contrast, Ron DeSantis did not run a single ad on trans issues. Not one. His video archive shows ads focussing on the economy and on character - about keeping Florida’s schools and businesses open through the pandemic, helping his wife through cancer, saving jobs, and delivering tax cuts. Equally, successful Texas Governor Greg Abbott did not run a single anti-trans ad either. The winning GOP candidates followed the polling and understood the issues the public actually cares about.
They understood there are no net votes to be gained by appearing obsessed by these marginal issues, especially at a time of economic upheaval.
Trans issues did not even feature highly in the concerns of real US voters, Republican or Democrat. As in the UK where 2% of voters list trans issues as a top priority, the number in the United States is 3%. The economy won out over culture.
Perhaps this is why a senior Tory told me this week that top conservative polling guru Frank Luntz - who has worked at the most senior levels in the UK, US, and Australia - has repeatedly advised the British Conservative Party to avoid waging a cultural war over trans rights. Much like we have seen in the examples of the US and Australia, for simple selfish Conservative reasons, it is a bad thing to focus on.
The public is bemused by a government that appears to be spending its time fiddling with technical questions effecting a minuscule proportion of the country, when the top concerns of average voters lie in the economy (66%), healthcare (60%) , and immigration (31%). Clearly Rishi Sunak knows this as his focus-grouped-to-death list of five priorities shows us.
While a trans obsession delights and excites some corners of Twitter, in the real world it makes a party that alights upon it look at best distracted and at worst cruel. Research by the More In Common organisation found that compassion is the starting point for most of the public when approaching these issues. Any party that attempts to exploit these issues for political gain risks alienating the median voter:
Instead of angry debates and Twitter pile ons, the public want a ‘live and let live’ approach to trans people and case-by-case solutions not blanket policies. Most are aware of the issues involved, a quarter know someone who is transgender, and for most the starting points are compassion and common sense. More agree (46%) than disagree (32%) that a trans man is a man and a trans woman is a woman.
That is before we even get to the fact that consistently it is female voters who are more compassionate towards transgender people than male voters. The enormous risk for the Conservative Party is that far from attracting new voters, it creates a sense of obsession and general ‘nastiness’ that only serves to drive away voters who do not obsess over these niche issues. Especially amidst a cost of living crisis.
In sum, the process by which a trans person can obtain a GRC is not the biggest issue in British Politics. It is a question of administration, not access to spaces. And conservatives in the English speaking world do not do well when they try to weaponise debates that simply serve turn off the public into election issues.
Again, this is an issue that affects a positively lilliputian proportion of people. It needn’t be a national debate. Yet the anger and the heat around this debate is so remarkably misplaced and misinformed that sadly I felt utterly compelled to explain what a GRC actually is, and what GRA reform actually does. Sadly, because I shouldn’t have to. There are so many more important, more existential issues on which our national debate should focus.
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