Should we Repeal the GRA?

by Miroslav Imbrišević

Danny Nicol argues in favour [https://grarepeal.blogspot.com/2023/08/gra-repeal-not-such-pipe-dream.html]. But he is wrong on several counts. Invoking Goodwin, sovereignty of Parliament, and international law is an unnecessary digression. Even without Goodwin, such legislation would have happened sooner or later – see other countries. We have to make sure that the legislation is fit for purpose.

1. Repealing the legislation would be an injustice to the roughly 5000 people who have obtained a GRC since 2004, many of whom did/do suffer from gender dysphoria. Expecting recognition by the state, many went through gender affirming surgery. It would be a ‘break of promise’ by the state to these citizens to repeal the legislation and to stop legal recognition. Granting rights and later taking them back is something we are used to from repressive regimes, but not from the UK. We take pride in supporting the rule of law. What does need resisting though, is self-ID legislation like that proposed in Germany, which would make changing gender as easy as shopping in a supermarket.

2. “The GRA creates a system of sex falsification.” This is not what the law is doing. Instead, the GRA has created a legal fiction (fictio legis). There is nothing unusual about legal fictions. When we change from summer time to winter time, we employ a legal fiction. The law has created legal fictions since the time of Roman law. A present example: the law distinguishes between ‘natural persons’ and ‘legal persons’ (= companies/corporations). The latter are, of course no ‘persons’ at all; a ‘legal person’ is a legal fiction, and everyone with a little legal knowledge knows this. [More on legal fictions here: https://theelectricagora.com/2019/10/14/legal-fictions-changing-sex-by-changing-gender/ ].

Although, two things would need clarification in the present legislation, first of all the phrase ‘for all purposes’. The 2004 Gender Recognition Act, section 9 (1) reads: ‘the person’s gender becomes for all purposes the acquired gender’. It should read ‘for all purposes of the law’ [more on the meaning and origins of this phrase here: https://wordpress.com/post/miroslavimbrisevic.wordpress.com/671]. Second, laws relying on legal fictions are never self-reflective, stating explicitly: ‘but this law relies on a legal fiction’. Normally, this is not necessary, because all involved know this and/or there is no danger of error or bad outcomes.

But it is different for the GRA. Many trans people and their supporters have started to believe the legal fiction (that one can change sex). So, the law should state explicitly that it is employing a legal fiction. The fact that the GRA (and the 2020 EA) allows for exceptions is proof that the phrase ‘for all purposes’ is misleading. The exceptions also prove that we are dealing with a legal fiction. If trans women really could become ‘women’, then such exceptions would be a violation of justice. If we had such clarifications, then a lot of present problems would disappear: nobody in their right mind would think that TW (particularly with convictions for sexual and/or domestic violence) belong in the female prison estate. And nobody would believe that TW athletes should compete in the female category in sport.

[Info about the numbers having gender affirming surgery here:

https://www.dailymail.co.uk/health/article-12140429/Number-Brits-undergoing-gender-changing-ops-doubles-decade-fascinating-stats-reveal.html]