Transphobia, Hate Crimes, and the Right to Identify

I’d intended my next piece to be on the confusions that reign concerning the meaning of the terms “gender” and “sex” and the like, but it occurs to me that it might be helpful to summarise what I argued in Transgender and the Law 1 and Transgender and the Law 2 and indicate where I think this leaves us in respect of the recently enacted Hate Crime and Public Order (Scotland) Act (HCPOA).

As outlined in the aforementioned pieces, the existing legislative framework is under pressure to change in response to what appear to be rapidly evolving social attitudes. Those pressures find expression in some odd phrasing in the Sentencing Act and in the HCPOA. The latter in particular offers a revisionary account of what it is to have a “transgender identity”. This strikes me as significant. In the Sentencing Act, having a “transgender identity” is the same as being transgender, and from the standpoint of the Gender Recognition Act (GRA) being transgender signifies having acquired a Gender Recognition Certificate (GRC) on the basis of having met the clinically specified conditions. Whatever one thinks about the legitimacy of the GRA’s medical model, this at least promises consistency: people with a “transgender identity” are protected from hostility as per the Sentencing Act because they are transgendered, and to be transgendered is to be in possession of a GRC. I say “promises” consistency because as recalled above, the Sentencing Act does hint at the possibility of other “processes of gender reassignment”. But one can only assume that those would likewise be processes which, like the existing one, would issue in legal recognition. The point here is that existing legislation continues to view transgender people as those who have or are intending to transition, where transitioning is part of a legally sanctioned process that issues in an acknowledgement of changed sex/gender. Since that process is legally sanctioned it is clear to all what it is; which is to say, it is evident what membership of the group targeted for specifically transphobic hostility involves.

Turning now to the HCPOA, that is not the case. As we saw, what it is to have a “transgender identity” includes people who are:

‘(a) a female-to-male transgender person,

(b) a male-to-female transgender person,

(c) a non-binary person,

(d) a person who cross-dresses’.

If for the purposes of simplicity we take (a) and (b) to include those who are covered by UK-wide legislation we see a shift here from a situation where having a transgender identity is being transgender as defined by a legally recognised process to being transgender as just one of the ways in which one’s “transgender identity” might express itself. But since having a transgender identity is the “protected characteristic”, and not being transgender as defined (on this understanding) by (a) and (b), group membership is no longer identifiable on the basis of a legal route to transitioning. According to government statistics the number of GRCs granted on average each year runs at under 400. So setting to one side the eccentricity of (d) this constitutes an insignificant number when considered alongside those people who identify explicitly as nonbinary or who simply indicate that their “gender identity” is not the same “as their sex registered at birth”. In other words, the proposed new definition of having a “transgender identity” is not only no longer coincident with being transgender (as per (a) and (b)), but it is now a predominantly identity concept.

The first thing to note then is that membership of the group of people who would be considered the target of the associated hate crime of transphobia will be determined, not on the basis of a legally sanctioned process with objective criteria of satisfaction but on the basis of what people say about themselves (their own self-understanding). I’ll return to whether or not this is workable in my next two pieces but before concluding I want to make a further point. Note that it was not available to the Scottish legislators to deviate from current UK legislation regarding (a) and (b), as attempts to do so were the basis of the UK government’s successful challenge to the Gender Recognition Reform (Scotland) Bill. But as we saw in Transgender and the Law 2, the GRRB put forward conditions for legal reassignment that are founded entirely on self-identification. Indeed, I argued that if there’s an underlying principle to be discerned in the Scottish Parliament’s drive to legislate in this area it is the conviction that people have a right to reject the determinacy of the gender they were “assigned” at birth.

A simple tagline for this right is that people have a right to a nonbinary identity, and that (i) those who chose to exercise that right in the name of avowing a gender identity different to the one they were assigned at birth and (ii) those who refuse to assert any specific identity, and (iii) those who dully continue to avow their birth-assigned identity have one thing in common: they are all exercising that right (even if they are unaware of it). At the end of the Transgender and the Law 2, I suggested that this is the claimed trans right (TR). What the HCPOA does, then, is insinuate acknowledgement of that right into current legislation by revising the definition of “transgender identity” to include the (much larger number of) people who in a minimal sense identity as nonbinary (c) and thus determining as the target of transphobic hate those who choose to exercise that right.

Evidently, the UK government chose not to challenge the HCPOA. To my eye at least defining “transgender identity” in a way which builds in recognition of a right which might equally be expressed as the right to determine one’s own gender is at least a provocation. More important from my perspective is whether a hate crime based on victims’ self-identification is a practicable legal device. But again, my interest here derives from the conceptual issue. If I am correct in identifying a fundamental rights claim at the bottom of all this, is that claim legitimate? Does it make sense to talk about a right to reject or not one’s assigned gender? If not, what exactly is it to be transphobic? In my next two pieces I’ll start to address these questions.