Trans persons and non-binary persons
1. Overview
This chapter covers trans and non-binary issues and explains gender critical views. This is an area which has become characterised by strong views, and sometimes a lack of respectful debate, often on social media. In the 2022 census, just under 20,000 people described themselves as trans, or having a trans history (equating to 0.44% of the population over 16).[1]
It is split into sections as follows:
2. Introduction
Someone who identifies as “trans” considers they have a different gender identity from their biological sex. Some organisations and individuals refer to ‘gender expression’ rather than gender identity.
Some do not identify as one or other gender or identify as having a fluid gender identity. When someone does not identify as either gender that is generally referred to as “non-binary”. Non-binary is not recognised in law as a separate category of gender or sex (for example, in that a birth certificate or passport must have a person’s gender as either male or female).[2] However non-binary persons are included within the definition of transgender identity for the purposes of the Hate Crime and Public Order (Scotland) Act 2021. Sometimes “trans” is used to include non-binary persons.
Trans and non-binary identities are separate from sexuality. Whilst some trans persons identify as gay (that is, will seek same-sex relationships as within their acquired gender identity), sexual orientation is a separate part of someone’s identity. Sexual preferences are a different personal issue to gender identity (and are also two separate protected characteristics under the Equality Act 2010, being sexual orientation and gender reassignment).
A list of terms that might be used, or referred to, are found at the end of the chapter. Judges should note that some terms listed are controversial. As the Inner House has observed
“The issues which surround the whole subject of gender reassignment, gender Identity, and gender recognition are difficult and sensitive. It is not always easy for the law to keep pace where societal attitudes and understandings are in a state of flux…”[3]
It is also an area where there can be intense scrutiny over the words and phrases used by judges.
It is also important to acknowledge what are called “gender critical views or beliefs”. There are variations in what that phrase might mean to different individuals, but it essentially criticises the ability to change sex, it being argued that sex is a matter of biology rather than identity, and sex and gender cannot be conflated. Gender critical beliefs have been held to be protected under the Equality Act 2010.
Given the political debate around this issue, the fluctuating legal position and the emotive issues involved, care is required. If a judge does not refer to a person in accordance with their own chosen gender identity, there is a risk of failing to respect the protected characteristic of gender reassignment under the Equality Act 2010, and also of alienating that person from the court process. On the other hand, judges will be aware of high-profile cases with an accused identifying as trans (without a Gender Recognition Certificate). There have been sensitivities with complainers and others if a judge or others in the court refer to the accused using the accused’s preferred pronouns. Ultimately, whilst judges should, if possible, accommodate individuals’ wishes and preferences, where that does not impinge on the rights of others, there may be times where a judge must deal with matters in accordance with a person’s legal sex.
Judges should note that if a person has a Gender Recognition Certificate, that has the effect of changing someone’s gender.[4] In those circumstances, the person’s gender before the court is that of the assigned gender (but see footnote 239 above).
3. A trans person and the law
The Gender Recognition Act 2004 was introduced as a result of a decision of the European Court of Human Rights.[5] Relatively small numbers of Gender Recognition Certificates (GRC) are issued each year.[6] The issuing of a GRC changes someone’s gender to the acquired gender.[7] Whilst there has been the ability to apply for a GRC for some time, there are outstanding legal questions as to the interaction between the issuing of a GRC and the Equality Act 2010.[8] This section should be read with that in mind.
Not everyone who identifies as trans seeks treatment or applies to legally change their gender (by obtaining a GRC).[9] There may be many personal reasons for not doing so. Trans groups report the process as difficult to navigate, and intrusive. Someone without a GRC but identifying as trans will still have the protection offered by the Equality Act 2010 (so long as they can meet the protected characteristic of being an individual who is ‘proposing to undergo, is undergoing or has undergone a process or part of a process to reassign their sex’). Someone cannot apply for a GRC until they have lived in their acquired gender for two years.
Accordingly, that gives a period where a trans person is unable to legally change their gender but may present to the outside world as the other gender. That may be consistent, or it may fluctuate. It could be easier for a trans person to identify as their preferred gender in a supportive social situation than it is for them to appear as the other gender in their workplace or around certain people or situations. It may depend on context and how confident an individual feels. Those factors are likely to vary over time.
Accordingly, noting the requirement to have lived in the acquired gender for two years before an application can be made for a GRC, someone may present in court in the opposite gender to their birth sex. Such a person would not have the protection of a GRC (so accordingly their gender would be in accordance with their birth sex) but would be protected under the Equality Act 2010 under the protected characteristic of gender reassignment, and must not be subject to harassment, discrimination or victimisation.
More than one protected characteristic under the Equality Act 2010 can apply at any one time. An example might be someone protected under the characteristics of both race and disability. Someone identifying as trans might have the protection of both gender and trans. For example, if a trans person’s biological sex is female, and they identify as male but without a GRC, it is likely that person will have both the protected characteristics of being female and of gender reassignment (so long as they can meet the protected characteristic for gender reassignment).
If someone has, or is applying for a Gender Recognition Certificate, it is an offence for someone who has obtained that information in an official capacity (such as an employer or public official) to disclose it to others.[10] There are various exemptions, including disclosure by virtue of a court order, and disclosure for the purpose of preventing or investigating crime.[11]
Judges will be aware of the proposed changes in Scotland, set out in the Gender Recognition Reform (Scotland) Bill. The Bill, as passed by the Scottish Parliament, proposed various changes to the process, including altering the age at which a GRC could be applied for, shortening the period required to live in the acquired gender, and removing the need to have a diagnosis of gender dysphoria. The Bill was subsequently blocked by an order made by the UK Government and is unlikely to become law in the near future.[12]
Some of the definitions within the Equality Act 2010 have come before the courts in a number of cases.[13] As indicated, this includes (at the time of writing) a case before the UKSC.[14] Separately, the Equalities and Human Rights Commission has made recommendations to the UK Government on the issue of amendments to the Equality Act 2010 (relating to the definitions of ‘sex’).[15] Accordingly this is a dynamic area of law.
4. Non-binary persons
A non-binary identification is where a person does not identify as either male or female, or may have a changing identification between the two. It is not known how many persons would identify themselves as non-binary in Scotland, although for the first time the 2022 census allowed participants to identity as non-binary.[16]
As previously set out, there is no legal recognition of non-binary as an alternative to male or female gender.[17] A high percentage of non-binary people report feeling their gender identity is not valid.[18]
The Employment Tribunal has found that a biological male transitioning, but unsure as to whether they would have a gender fluid or a female identity in the longer term, was nevertheless protected under the characteristic of gender reassignment.[19] Whilst this is not binding, and was based on the particular facts, it may be a helpful illustration of the issues.
“Transgender identity” in the Hate Crime and Public Order (Scotland) Act 2021 is defined to include non-binary identity.[20] Broadly speaking the Act creates aggravations by prejudice to offences and stirring up hatred offences, as well as a requirement for the police to record and report on non-crime “hate incidents”.
5. Gender/sex/biological identity
Whether the word “gender” is used, as opposed to “sex” or “biological sex”, can be controversial. Many people, particularly younger people, use such phrases to describe someone’s internal sense of their identity irrespective of the legal position.
6. Gender critical views
For some, gender is a social construct rather than a matter of biology. Some believe that biological sex is immutable and cannot be changed. These views are often referred to as ‘gender critical’ views, (although there can be a range of views within that description). Such views include that sex cannot be changed and is a matter of biology, that sex is distinct from gender identity, and around concerns that single sex spaces/sports should not include those identifying as female if biologically male, whether or not the individual has a GRC assigning their gender as female.
Gender critical views have been recognised as a philosophical belief, and thus protected under the Equality Act 2010.[21]
7. Medical treatment for trans persons
Treatment is available on the NHS in Scotland for those wishing to change their gender, including for young people.[22] However, many persons who identify as trans do not seek medical treatment, some citing issues around accessing treatment.
Some trans people do not consider medical treatment is required. Medical treatment, such as hormone treatment, is not required to bring a trans person within the scope of the protected characteristic of gender reassignment under the Equality Act 2010 although a diagnosis of gender dysphoria is required to obtain a GRC.
8. Discrimination and hate crime
Trans persons report experiencing high levels of prejudice and discrimination. In a report by the Equalities Network on hate crime (across a number of sexuality and gender identity characteristics) trans persons reported the highest level of hate crime.[23]
Crown Office statistics suggest such crime (or the reporting of such crime) is on the rise. In 2021-22 there were 84 incidents reported with an aggravation of transgender identity, an increase of 87% on the previous year. Crown Office note this is “the highest number of such charges reported since the legislation introducing this aggravation came into force in 2010.”[24]
Judges are familiar with the concept of explaining in what way an aggravation is taken into account when sentencing.[25] Research suggests that an explanation as to how the aggravation has been taken into account may be important for the complainer to understand the sentence imposed.[26]
“Transgender identity”[27] is a protected characteristic in terms of the Hate Crime and Public Order (Scotland) Act 2021. Broadly speaking the Act creates aggravations by prejudice to offences and stirring up hatred offences, as well as a requirement for the police to record and report on non-crime “hate incidents”.
9. Trans persons in a court or tribunal
Judges may wish to note the following points:
The name and pronouns by which a person is referred to or called can be very important to a trans person. It might be seen as a sign of disrespect if someone does not refer to them by their chosen identity;
Often the question of gender identity is not truly relevant to the issue at hand; for example, so long as there is no dispute about the identity of a witness, if a witness wishes to be referred by a male pronoun despite having a female appearance, that may not require any further questions by the court or tribunal. Accordingly where someone’s gender identity is not a material issue, judges may wish to take the approach of accommodating those preferences without enquiry into, for example, the legal position;
In evidential hearings, as with any collateral matter, take care to ensure matters do not stray beyond what is necessary to determine the issues that are relevant and in dispute;
Judges should be alert to any attempts to ‘out’ someone. In the limited number of cases where gender identification is relevant, the court should be alert to any questions that might be demeaning or insulting or interpreted as such, given the need for everyone in court to be treated with courtesy and dignity. If the question is relevant, judges should ask for it to be rephrased;
If referring to someone in a way that goes against their own gender identity (in circumstances where the person has not legally changed their gender and name), be mindful that of the risk of alienating them from the court process;
Notwithstanding that, respecting someone’s chosen gender identity must be balanced against the impact on others. Whilst the numbers of trans persons appearing in court as an accused person are likely to be small, difficult issues can arise, particular in cases involving sexual allegations;
In criminal trials, there may be a time lag between the alleged events and the trial. If so, and gender identification has altered in the intervening period, and is likely to feature in the case, encourage a joint minute agreeing the facts around the individual’s gender identity, whether that is of a witness or the accused.[28] Such a joint minute might address any differences in physical appearance between the alleged events in question and the trial, and/or agree identification. That may avoid the issue of gender identification becoming a distraction;
Consider an early discussion as to how someone should be referred to in court if the matter is likely to proceed to an evidential hearing. Some judges have found setting out the general expectation that the court will respect the chosen identity where possible (irrespective of the individual’s legal position) has prevented the matter becoming a distraction at trial or proof;
In some circumstances the court may have to consider the legal position of the accused’s gender, particularly where others are affected. That might include the ability of the press to understand any trans issue and accurately report the facts;
The court should always put witnesses in the position of giving their best evidence. As in any case (for example a fraud where an accused has used multiple identities) witnesses should give their evidence referring to the accused in the way they knew that person, including by the name they knew them as. Placing additional or artificial barriers on a witness is likely to detract from their ability to give best evidence. Accordingly, complainers giving evidence in trials should not be required to call an accused ‘she’ if they knew the accused as a male;
In sexual assault cases there is a likely to be heightened sensitivity, particularly when a female complainer knew the accused as a male and the male is now identifying as a female. Ensure that any such cases are properly case managed and consider a sentencing statement so that any remarks in court are more likely to be accurately reported.
Some of the sensitivities and issues that may arise are dealt with by academic Claire O’Brien in this blog, which also highlights the international law dimension when considering offences of violence against women.
A guiding principle is likely to be that witnesses should always give their evidence without hindrance, and by referring to the accused as that person was known to the witness.
10. Non-binary persons in court
Much of what has been said relative to trans persons in court may also apply to non-binary persons. Some additional points include:
Many non-binary and trans people do not wish to use Mr/Mrs/Ms but use Mx as a gender-neutral alternative (pronounced “mucks”). Many people now identify their gender on emails (where e.g. him/he after their name) and use gender neutral terms (e.g. they instead of I). There is no accepted one definition or use of gender-neutral terms;[29]
A gender fluid person may identify as male appearance on some occasions, and female on others;
Judges may wish to refer to jurors as a collective using the term ‘Members of the jury’ rather than ‘Ladies and gentlemen’ (see also the Gender chapter relative to this).
11. Trans persons in prison
The question of in which prison facility a person is held is not a matter for the judiciary but for the Scottish Prison Service (in a similar way to how the prison service might respond to a person’s disability or other characteristic).[30]
The SPS policy considers individual cases, which may allow a trans person to be placed in a prison in accordance with the gender they identify with.[31]
12. Definitions
Some of these definitions are contested. Judges are given these definitions to assist their understanding should they be used in court. Accordingly, the inclusion of these definitions does not suggest that they should be used more widely, or that the meaning is settled.
Cis/cisgender | Used by trans groups and others to denote someone who is not transgender and identifies with their sex at birth. However, many women’s groups object to this definition, noting they identify as females or as women. |
Cross-dressing | The wearing clothes, make-up, or other accessories generally associated with the opposite gender; not now often used |
Deadname | The name that a trans person had in the other gender and no longer uses. |
Gender dysphoria | A medical/clinical term referring to difficulties a person has where they identify as a different gender from their biological sex. |
Gender expression | The way that someone might express themselves in a way that is viewed as masculine or feminine by clothing or behaviours. |
Gender identity | Refers to an internal sense of gender and whether (irrespective of the legal position) someone identifies themselves as one or other gender, or a fluctuating gender, or no gender. |
Gender reassignment | The legal term used in the Equality Act 2010 as a protected characteristic, but also used to refer to the process of someone changing their name, pronoun and living in their self-identified gender, including with legal recognition (without necessarily hormonal or surgical treatment). |
Non-binary | Where someone identifies as either having a gender which is in-between or beyond the two categories of ‘man’ and ‘woman’, or fluctuating between ‘man’ and ‘woman’, or as having no gender, either permanently or some of the time. |
Trans/transgender | Someone whose gender identity or gender expression does not fully correspond with the sex they were assigned at birth. |
Trans man | A person who was assigned female at birth but has a male gender identity and therefore transitions to live as a man. Sometimes also referred to in the trans community as ‘person with a trans history’. |
Trans woman | A person who was assigned male at birth but has a female gender identity and therefore transitions to live as a woman. Sometimes also referred to in the trans community as ‘person with a trans history’. |
Transphobia | Prejudice or discrimination again trans persons |
Transitioning | The process that a trans person takes to live in the gender they now wish to. This might include medical interventions, such as hormone treatment and changing their gender legally, although others consider themselves transitioning without any such steps. |
Transsexual | Used in the Equality Act 2006 to describe a person undergoing gender reassignment but has otherwise been largely replaced by ‘trans’ and generally no longer used by the trans community. |