Thank you for kindly considering this submission to the Public Consultation as part of a review of the Equality Acts (Equal Status Acts 2000-2018 and the Employment Equality Acts 1998-2015).
Women's Space Ireland provides a space to speak on issues of concern to women in Ireland in relation to issues which affect us. Such issues includes social and legal definitions of "sex", "gender" and "gender identity".
We note that in advance of the holding of a Public Consultation, a political commitment was given to amend our equality legislation to include the category of “gender identity”.
The Department for Children, Equality, Disability, Integration and Youth explained in June this year that:
"The Programme for Government includes a commitment to amend the gender ground in equality legislation, to ensure that someone discriminated against on the basis of their gender identity is able to avail of this legislation. Work is underway to examine this commitment in tandem with the action in the National LGBTI+ Inclusion Strategy 2019-2021 to review the Employment Equality and Equal Status Acts to ensure that transgender, non-conforming and intersex people have explicit protection within the equality grounds."
The gender ground is the first named ground in our equality legislation and is provided to ensure that one sex is not discriminated against compared with the other. The 2000 Equal Status Act says it is intended “to promote equality and prohibit types of discrimination, harassment and related behaviour”.
Sex is scientifically defined by our biology from conception and is immutable. Neither hormones nor surgery alter this fact. “Gender identity” – if one defines it as self-declaration of oneself as one sex or the other or neither – is by contrast an individual's belief and is therefore distinct from the reality of their sex.
If “gender identity” is to be included as one of the grounds to be protected from discrimination in our equality legislation then it's essential that it is ring fenced as a separate category from sex and not included under “gender” which currently protects on the basis of sex and should be maintained on that basis. Any attempt to redefine the category of “gender” to include both the material reality of sex alongside a belief in a “gender identity” will prove incompatible when it comes to upholding rights under legislation.
Current legislative protection for women
Current legislation protects the characteristic of gender, described in the Equal Status Acts 2000-2018, as the “gender ground”: Section 3 (2) (a) of the 2000 Equal Status Act says:
"As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: (a) that one is male and the other is female (the “gender ground”)"
This is a definition that is clearly based on a person’s sex i.e, there are only two sexes: female and male. A human female is a woman or girl and a human male is a man or a boy.
Original intent of the equality acts
In addition to gender being a named ground for protection from discrimination there are also exemptions allowed under the gender ground from having to treat both sexes the same in certain circumstances e.g. for reasons of privacy.
In acknowledging that there are legitimate reasons for treating women and men differently, e.g. in relation to considerations of privacy and embarrassment, single sex sports, schools, accommodation and personal care the Equality Acts recognize that there are material differences between the two sexes.
Potential negative effects on women of including “gender identity” under the gender ground:
- If males who identify as having a female or other “gender identity” are included under the category of “gender” it will effectively remove the protection from discrimination for women and girls on the basis of our sex from the Equality Acts and risks negatively impacting on women’s equality and rights.
- In situations where a person’s sex matters, disallowing the exemptions currently provided to one sex, in this case women, under the gender ground by permitting males with a female gender identity to be included would also discriminate against women and be contrary to the meaning and intent of the equality acts.
- Males who identify as women or some other gender identity arguably do not experience discrimination on the same basis as women. In other words, women still need positive discrimination to advance our equality with men which might otherwise be denied us e.g. provision of support for single sex sports or awards to support women's participation in certain areas.
Definitions of other terms:
According to the much cited but non-binding original Yogyakarta Principles (2006)
“Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth,* including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”
The Principles were drafted and signed by a group of lawyers, human rights experts and trans rights activists, including Robert Wintemute, professor of human rights law at King’s College London. Prof Wintemute now says that women’s rights were not considered during the meeting and that he should have challenged some aspects of the Principles.
“Admitting he 'failed to consider' that trans women still in possession of their male genitals would seek to access female-only spaces, Wintemute, who is gay, says: 'A key factor in my change of opinion has been listening to women.'” [our emphasis]
He says the majority of the original signatories - including nine women- never imagined how the Principles would be misused and misrepresented. He believes a legal “change of sex” has to come with conditions. He points out that in other areas of life it is not acceptable to “self-identify” for instance as a citizen, refugee, adoptive parent, or disabled person – since certain conditions apply.
*It's not only inaccurate but an ideological claim to suggest that sex is “assigned at birth”. The medical and scientific consensus is that sex is observed and recorded at birth and not arbitrarily assigned.
Some men and women choose to “identify” as the opposite sex but this does not change their sex. A Gender Recognition Certificate grants legal recognition of a fiction (as it is biologically impossible to change sex) as does the granting of a new sex-denying birth certificate.
“18. (1) Where a gender recognition certificate is issued to a person the person’s gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman.”
TENI, the Transgender Equality Network Ireland, points out that “Not all transgender people medically transition (either hormonally or surgically). There is no one size fits all.”* According to the 2015 US Transgender Survey no more than 12% of men have had genital surgery so if the same holds true here, most are likely to be fully intact males.
Those who are “non-conforming” are all either male or female.
Those with one of 40 or so Differences of Sex Development (DSDs) are also either male or female. DSD Families, a support group for those with DSDs, which are genetic conditions, in the UK, points out that
“Intersex is a term that was previously used by doctors before DSD. For them it has the same meaning and doctors now see it as an out-dated term.” The group adds
“DSD affects around one in every 4,500 births, in other words, around 130 babies in the UK every year. But since DSD is a collection of different conditions, some variations are more common than others.”
The UK has a population of c66 million to our 5m, therefore very few indeed would be born here each year. Many of those who have a DSD have repeatedly asked not to be used by those promoting “intersex” as a gender identity.
DSD Families have said that they received written confirmation from the National Records of Scotland that the inclusion of intersex under the trans umbrella is “an error”. We would respectfully urge the Department of Children, Equality, Disability, Integration and Youth not to persist in repeating this inaccuracy.
NON-BINARY: Not mentioned in the Departmental response above but frequently referred to.
The Gender Recognition Act Review Group of 2018 explained that “non-binary” means:
“Non-binary is an umbrella term for gender identities that fall outside the gender binary of male or female. This includes individuals whose gender identity is neither exclusively male nor female, a combination of male and female or between or beyond genders. Therefore, non-binary is a term that relates to questions of gender identity.”
However as with “transgender”, a non-binary identity doesn't change one's sex, which still remains either male or female.
A distinction is needed between the categories of sex and “gender identity”
Men who identify as women, who are non-conforming or describe themselves as transgender or non-binary should be protected from harassment but this is not to suggest that their belief entitles them to the same rights and protections that exist in law for women, as if they share in being discriminated against in the same manner or for for the same reasons.
Any protection afforded to “gender identity” needs to ensure that such protection does not encroach on the rights of women to single-sex spaces, personal services, clubs, sports, awards, representation of women or the use of our name which is the accurate name for adult human females only.
As sex is immutable the particular protections for women and girls on the basis of our sex must be maintained in order to support equality for women. Where sex is relevant e.g. in changing rooms, (compared to where it is not e.g. being served in shops or restaurants) we should recognise that it is sex, not gender identity, which must be protected in order to safeguard women's rights to:
- safety and privacy from all male people, including those with an alternative “gender identity” where women are particularly vulnerable e.g. in changing rooms and toilets
- single-sex schools
- clubs or social outlets for lesbian women
- women’s prisons for women only
- fairness and safety in sport for women and girls
- representation of women, including awards for women,
- and the biologically accurate use of the term “women”.
Recommendation: the existing protections and exemptions under the the gender ground should be maintained in our equality legislation as protection on the grounds of sex, defined as male or female only.
“Gender identity” should not be included under “gender”.
Issues raised by the Irish Human Rights and Equality Commission (IHREC)
"While transgender people are not specifically referenced in the equality acts, the Acts must be - and indeed have been - interpreted in accordance with the EU Directives and under EU law a transgender person who experiences discrimination arising from their 'gender reassignment', or transition, is also protected under the gender ground."
This is because in the preamble to Directive 2006/54/EC of the European Parliament it's noted that
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
Clearly this protection deals only with those who have undergone “gender reassignment”, not those claiming a “gender identity”. The IHREC then went on to say
"The Commission is nevertheless of that view that the equality acts should explicitly prohibit discrimination against transgender, non-binary and intersex people."
The IHREC has also said that
"Transgender persons are protected under the gender ground for the purpose of equality legislation. Specifically, the gender ground means that you are entitled to equal treatment whether you are a man, woman or transgender person." (email response)
The IHREC was therefore asked
"If transgender people are already covered by our equality legislation why would the IHREC recommend that 'The Commission recommends amendment of the equality acts to explicitly prohibit discrimination against transgender, non-binary and intersex people'?"
With no reply to this question received therefore no evidence has been provided by the IHREC as to why males who call themselves “transgender, non-conforming or intersex” or those who claim a “gender identity” which differs from their sex should be included under the gender ground in our equality legislation and protected in the same way as women and girls are on the basis of our sex.
Lack of impact assessment on the proposed legislative change
In response to a request for a copy of the impact assessment carried out “regarding the proposed amending of the gender ground and the addition of protection for 'gender identity' to our equality legislation” the Department said that “following searches made in the Department no records were found”.
It is extraordinary that the Government has acceded to a request for which there has been no attempt made to assess the likely impact on women and girls, the sex likely to be most adversely affected. Females who choose to “identify” as men are not a risk to men in their spaces, though they may well find themselves at risk in intruding on the privacy of men.
Recommendation: The case for legislative change has not been made when there is no evidence provided of the need for such change and no impact assessment has been carried out on the effects this change may have on women.
Incorporating “gender identity” into the gender ground would be to disregard and undermine a major plank of the rationale for our equality legislation.
Exemptions under the gender ground currently provided under equality legislation
Although discrimination is not generally allowed, there are exemptions currently provided. The 2000 Equal Status Act allows for example that it is not considered discrimination to have differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender, differences in relation to services of an aesthetic, cosmetic or similar nature where the services require physical contact between the service provider and the recipient, or in the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender which would be required in refuges for victims of domestic violence, women's prisons and hospital wards. Single-sex schools are also exempt as presumably would be a club for lesbians under the exemptions provided.
Need for privacy protection for women and girls – as provided by Section 5 (2)(g) of the 2000 Equal Status Act
When it comes to the provision of single sex spaces it is not only a social norm to provide such dignity to women and girls but it's also an important safeguarding protection.
Figures from the Central Statistics Office show that almost nine out of ten (88.6%) of victims of sexual violence crimes reported in 2019 where the crime occurred within one year of its reporting were female. 1,545, or more than half of victims (55.4%) reporting sexual violence in the same year were under 18 at the time the offence occurred, while a further 722 victims (25.9%) were aged between 18 and 29. 98% of suspected offenders of detected sexual violence crimes recorded in 2018 were males.
It's therefore hardly surprising that women and girls have a well-founded fear of men, most especially in situations where we are especially vulnerable such as enclosed spaces or where we may be in a state of undress. Women are socialised from when we are very young to be alert to the risks posed by men and we continue to take precautions throughout our lives in the way we choose to travel, what information we share, what safeguarding measures we take to protect ourselves and so on.
Despite this socialisation and precautions taken, when women are asked about what age they were when first they were approached by a male in a sexualised way almost all women are able to report at least one such incidence from childhood onwards. Men who are unaware of the incidence of such approaches and assaults are frequently shocked to hear how common this is.
Since women and girls have no way of knowing which men are a threat to us or not we have continued need of protection on the basis of our sex in certain circumstances. The simplest way to ensure this is to maintain single-sex provision for such spaces as toilets, changing rooms, hospital wards, prisons, refuges and personal services and so on as provided in the 2000 Equal Status Act.
It makes no sense to be concerned at the rates of sexual violence against women and girls yet to also propose to reduce safeguarding norms by allowing males to access women's single-sex spaces on the basis of self-declared “gender identity”.
Obliging a sports centre to allow men to use the women's changing room if they claim to have a female gender identity will effectively push women out of participating in the sports centre. We already have had a report of a man in a women's changing room at a gym which caused the women present to leave immediately. Women will not be comfortable and will indeed be fearful in mixed sex changing rooms. Allowing men in women’s changing rooms negates the reason why these changing rooms were sex-segregated in the first place. Women are not always safe exercising on their own, even in public spaces, so are in need of organised sports in many cases.
In the WiSpa incident in Los Angeles recently, “gender identity” was allowed to override sex and resulted in a biological male, who identifies as a woman, being permitted access to female facilities. This caused immense upset and distress to the women and children present. Despite claims by many that this reaction was a result of transphobia, charges of indecent exposure were later filed against a serial sex offender for the Wi Spa incident, following an investigation by the Los Angeles Police Department.
The RCNI's recent report “Storm and Stress” on sexual harassment amongst adolescents, which demonstrates the reality of the sexual abuse and harassment to which adolescent girls are exposed in secondary school indicates how early such protection is required. This level of abuse is an indication of why mixed sex toilets and changing rooms breach safeguarding norms for girls in our schools. Already the experience in other countries shows that boys are misbehaving in these mixed sex facilities and harassing girls. In addition girls are found to be under immense sexual harassment pressure through social media.
The rights, privacy and dignity of biologically female girls should be prioritised in the provision of school toilets, changing rooms and accommodation.
While the number of teenage girls is now well exceeding the number of boys in distress over their gender, many reasonably argue that much more careful scrutiny needs to take place over why this is occurring.
Last year 2020/2021 the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Trust had 1,512 girls under 18 referred to them compared with 704 boys. This includes 26 children from Ireland. It's posited that one reason for the huge increase in the number of teenage girls, characterised as Rapid Onset Gender Dysphoria (ROGD), is an attempted flight from being female given the level of sexism young women suffer. Women and girls thus have a continued need for single-sex spaces and a reprieve from the risk of harassment by men and boys.
In a survey reported by The Sunday Times three years ago “Unisex changing rooms put women in danger”.
“Almost 90% of reported sexual assaults, harassment and voyeurism in swimming pool and sports-centre changing rooms happen in unisex facilities, which make up less than half the total.
Gender-neutral changing is growing as councils seek to cut staff costs and cater to transgender people. But one MP said it risked becoming a 'magnet' for sex offenders and increased the danger to women and girls.”
Most men would be conscious of the need to respect women's privacy and of our fear of males in vulnerable situations so would never choose to use women's spaces. Therefore our suspicion of those that do is well founded.
Women are already starting to self-exclude from certain rape crisis centres as a result of some centres not being able to guarantee that they offer women only spaces. Edinburgh Rape Crisis has been mired in controversy over this issue with women who want women-only spaces in rape or domestic violence shelter and women-only counselling likened to “bigots”.
Women are also likely to self-exclude if more men compete with and against women in sport despite the protection afforded to students in education under the ESA in section 7 (4) (a). We are aware of cases of men involved in women's sport already. It's clearly unfair to women and potentially dangerous in the case of some sports, such as rugby where Kelly Morgan, a man who identifies as a woman"...folded a girl like a deckchair during a game,”
A new report by the Macdonald-Laurier Institute “Fair Game – biology, fairness and transgender athletes in women's sport” finds that “while inclusion is an important objective, safety and fairness should be higher priorities when it comes to sport.”
Prisons – where women have no chance to self-exclude
Three men with Gender Recognition Certificates have already been sent by the courts to women's prisons. Limerick Prison's women's unit has been under bed pressure space for some time and the need to accommodate these men in single cells either for their own protection or for the protection of women in the unit demonstrates the incompatibility of conflating sex with “gender identity”. Other jurisdictions are encountering problems with men identifying as women in order to gain access to a women's prison. This has resulted not just in stress and fear in women who are already some of the most marginalized and vulnerable in society but in a number of cases has resulted in assault in Britain and the United States.
Male pattern offending the same in men identifying as women
Male pattern offending is found to remain the same in men identifying as women. Fair Play for Women in the UK using Ministry of Justice (MOJ) statistics finds that:
“Taken together we conclude that this analysis of official MOJ statistics provides good evidence that transwomen in prison exhibit a male pattern of criminality and do not exhibit a female pattern of criminality. Crime patterns correlate with birth sex and not gender identity. This supports the idea that, when a women-only space is needed to protect against the physical and psychological impact of sex crimes, access should be based on birth sex and not gender identity. All males should be excluded, including males who identity as women.”
Although worldwide those who are transgender are also victims of violence and murder this varies widely depending on where they live. Fair Play for Women (FPUK) in the UK reports that
“Since the start of the Trans Murder Monitoring project in 2008 there has been on average just under 1 transgender person murdered in the UK each year.”
In analysing the figures FPUK found that the transgender murder rate is no higher than for the average person. By comparison, although the rate of murders for men is higher than for women, on average a woman is killed by a man every three days in the UK according to the Femicide Census.
Men with autogynephilia
The reason for so many young women being in distress about their gender is clearly very different from the reason many men choose to identify as women or some other gender. Traditionally it has been adult men in the main who have sought medical treatment for gender dysphoria.*
Dr Ray Blanchard, adjunct Professor of Psychiatry at the University of Toronto who specialises in the study of human sexuality, with a particular focus on sexual orientation, paraphilias, and gender identity disorders concludes that by 2010 some 75% of men who identify as women were what he calls “autogynephiles”, heterosexual men who get aroused at the thought of themselves as women. He adds that the percentage may be even higher now. (The rest are homosexual men.) More information on the thinking of such men can be found here.
Lesbians are already reporting that men who claim to be lesbians are attempting to breach the “cotton ceiling” in demanding that lesbians accept them as sexual partners. Men with a paraphilia such as autogynephilia, who seek validation of their identity by using women's facilities, should not have the right to intrude on women's right to privacy on the basis of our sex.
*[A prevalence study from St. Columcille's Hospital in Loughlinstown, Co. Dublin between 2005 and early 2014 of those with suspected or confirmed gender dysphoria (GD) found “The prevalence of GD in the Irish population was 1:10,154 male-to-female (MTF) and 1:27,668 female-to-male (FTM), similar to reported figures in Western Europe.”]
The argument of suicide
It is suggested that “affirmation” and social and medical transition (which would include allowing boys to use girls facilities) is the only answer to help children with gender dysphoria. The threat of suicide and suicidal ideation is often mentioned in coverage of gender dysphoria and is a strong emotional motivator for supporting the demands made by men and boys who would argue that they should be allowed in women's or girl's facilities.
It's well accepted that those with gender dysphoria, both adults and children, have a high rate of comorbidity with various mental health problems.
TransgenderTrend finds that “There are fundamental methodology issues with both UK studies that report that almost half of transgender young people attempt suicide.” The figure of 48% of young people in this category attempting suicide has been widely quoted, but on further examination this turns out to be based on a sample of 27 self-selected young people under 26 years of age (13 of whom reported attempting suicide in the past). These may not be representative of the general transgender identifying population. In fact at a conference in Bristol in October 2017, Dr Polly Carmichael, Director and Consultant Clinical Psychologist at the Tavistock & Portman NHS Foundation Trust, stated that rates of self-harm, distress and suicidal ideation are similar to CAMHS (Child and Adolescent Mental Health Services) figures overall.
In an affidavit last year psychiatrist Dr Stephen Levine said that
“There are no studies that show that affirmation of transgender identity in young children reduces suicide, suicidal ideation, or improves long-term outcomes as compared to other therapeutic approaches. Meanwhile, multiple studies show that adult individuals living transgender lives suffer much higher rates of suicide and negative physical and mental health conditions than does the general population.” [our emphasis]
“With respect to suicide, individuals with gender dysphoria are well known to commit suicide or otherwise suffer increased mortality before and after not only social transition, but also before and after SRS.” [sex reassignment surgery]
Further discrimination against women
In the granting of a prize to TENI, the Transgender Equality Network Ireland, under the 2019 Mná na nÉireann funding scheme for the Women of Ireland award women lost an opportunity to win one of these prizes.
These awards were for the purpose of helping women experiencing disadvantage, and to help promote female labour force participation. Men identifying as women are not experiencing systematic disadvantage in the workplace on the basis of their sex unlike women who still do, as a result of our biology. There is no reason why a separate awards scheme could not provide for men who identify as women to be given support in the workplace but it should not be at the expense of women.
Lack of consent or consultation with women as stakeholders
The fact that women have not been consulted; have not consented and would not consent to having males in spaces in which they are vulnerable and require privacy and dignity should be respected. There should be no change in the current exemptions provided under the gender ground.
A man's feelings of having a female “gender identity” is a belief. The concept of “gender identity” cannot be allowed to replace the reality of sex in law. The terms "women" and "girls", "men" and "boys" must be retained as relating to one’s sex. For women and girls, any legislation needs to prioritise safeguarding protection and privacy on the basis of our sex.
With the concerns now being voiced by grassroots women's groups in many countries worldwide as to the effects of the above outlined issues related to changing definitions of "sex", "gender" and "gender identity", the Government now has the opportunity to research this issue carefully before making any changes to legislation.
Womensspaceireland.ie [email protected]