by Miroslav Imbrišević
Trans activists in the UK might get confused by the phrasing in the 2004 Gender Recognition Act, section 9 (1), particularly by the phrase ‘for all purposes’:
‘Where a full gender recognition certificate is issued to a person, the person’s
gender becomes for all purposes the acquired gender (so that, if the acquired
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).’
This phrase has a specific legal meaning and history. It is short for ‘to/for all intents and purposes’, going back to English law in the 16th century. It means: ‘in every practical sense’ or ‘virtually’. It does not mean that a transwoman is a woman; it only means that the law will treat a transwoman as if she were a (biological) woman – for example, by issuing a new birth certificate. What we have here is a legal fiction, a helpful construct going back to ancient times. Roman law treated soldiers who were captured by the enemy (and thus becoming slaves in the eyes of Roman law) as if they were free men. This legal fiction ensured that the captive’s will was valid. Similarly, the GRA relies on a legal fiction by treating transpeople as if they were of the opposite sex. If a transwoman were no different from a woman, then the exceptions in the GRA wouldn’t make any sense. Section 19 Sport (1) states that in gender-affected sports the governing bodies can ‘prohibit or restrict the participation as competitors’ of persons who have legally changed their gender. The reason for this prohibition or restriction is to ‘secure (a) fair competition, or (b) the safety of competitors’.
The lawmakers implicitly acknowledge the underlying legal fiction by restricting the legal scope of changing your gender. The same goes for sections 15 Succession etc, 16 Peerages and 20 Gender-specific offences etc. In English law the crime of rape is defined as penile penetration. This means a transwoman, with intact male sexual organs, cannot use the defense that she is a ‘woman’ and therefore could not have committed the crime of rape.
It was wise of the UK lawmakers to include these exemptions, because they remind us that a transwoman is not the same as a woman and a transman is not the same as a man. However, for trans activists these exemptions contradict their mantra: ‘A transwoman is a woman’. For this reason they clamour for changes to the legislation.
The Canadian cyclist Rachel McKinnon seems to believe that she is ‘female’ in all respects, and for this reason she would be entitled to compete in the female category. Such a claim can only be made if you ignore, or are oblivious to, the legal fiction underlying gender legislation. I suspect that the Canadian lawmakers were not as wise as those in the UK.
Appendix: relevant sections from the UK GRA 2004:
15 Succession etc.
The fact that a person’s gender has become the acquired gender under this Act does not affect the disposal or devolution of property under a will or other instrument made before the appointed day.
16 Peerages etc.
The fact that a person’s gender has become the acquired gender under this Act – (a) does not affect the descent of any peerage or dignity or title of honour, And (b) does not affect the devolution of any property limited (expressly or not) by a will or other instrument to devolve (as nearly as the law permits) along with any peerage or dignity or title of honour unless an intention that it should do so is expressed in the will or other instrument.
19 Sport
(1) A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.
(2) This subsection is satisfied if the prohibition or restriction is necessary to secure – (a) fair competition, or (b) the safety of competitors, at the event or events.
(3) “Sport” means a sport, game or other activity of a competitive nature.
(4) A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.
20 Gender-specific offences
(1) Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.
Miroslav Imbrisevic 