gender recognition – Sandra Duffy

Appearance before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee: Opening Statement

Yesterday (21st June), myself, Dr. Peter Dunne (UoB), and Dr. Chris Dietz (University of Leeds), appeared to give evidence before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee.

This is my (brief) opening statement from the Committee.

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Committee members, thank you for the opportunity to appear here today. I will be brief.

I am an international human rights law scholar, specialising in gender identity and the law. On that basis, I fully recommend a self-identification basis for the Gender Recognition Act reform.

I have worked on global and regional gender recognition law mapping and analysis. I co-wrote three editions of the ILGA World Trans Legal Mapping Report. Most recently I have completed an analysis of gender recognition laws in Europe, to be published next year.

The international movement in gender recognition law is toward depathologisation and self-identification. A non-medical, non-judicial, purely administrative process is the only approach endorsed by the United Nations Independent Expert on Sexual Orientation and Gender Identity.

Legal gender recognition should be accessible, affordable, and depathologised.

Legal gender recognition on a basis of self-declaration has already been acted in countries as diverse as Malta, Denmark, Argentina, and my own home jurisdiction of Ireland. Although highly polarised concerns have been aired in the UK around the possibility of allowing for self-identification, they have not played out in those countries.

There has not been abuse of the process or an unexpectedly large number of applications. There have not been widespread reports of abusive use of the process by cisgender men to access women’s spaces such as changing rooms or bathrooms. There has not been a sea-change in the number of cisgender women selected for sports teams.

Trans people know their own minds. They do not take the decision to transition, be it legally, socially, or medically, lightly. Young trans people too can be trusted to make their own decisions, especially if supported by their families. It is unfair to make them choose between pathologising their nature and respect for their autonomy.

The law needs to respect the human rights to dignity, equality, privacy, and autonomy. Scotland needs to respect its trans citizens. On that basis, I recommend that the Committee considers self-identification as the best option for legislation.

An International Human Rights Law Analysis of the WHRC Declaration

This post concerns the Declaration on Women’s Sex-Based Rights produced by a group called the Women’s Human Rights Campaign. This Declaration self-describes as being

“On the re-affirmation of women’s sex-based rights, including women’s rights to physical and reproductive integrity, and the elimination of all forms of discrimination against women and girls that result from the replacement of the category of sex with that of ‘gender identity’, and from ‘surrogate’ motherhood and related practices.“

This post owes a lot to Mallory Moore’s excellent explainer of the introduction to the Declaration and is intended to complement Mallory’s piece by arguing from IHRL that the Declaration is founded on false premises. The writer of this post is an academic lawyer working in the field of international human rights with a specialisation in gender and sexuality. I have written and taught on CEDAW, the Yogyakarta Principles, and gender diversity in IHRL. I am writing this post in my personal capacity and it does not reflect the views of my employers past or present, or any individual apart from myself.

In writing this post, I am hoping to highlight the misuse of international human rights law in the Declaration. The intended and actual harm of the Declaration, being a call for the removal of transgender persons from public life – including the repeal of gender recognition legislation, the removal of trans persons from politics and sport, a ban on trans women using ‘women’s spaces,’ etc – should be incredibly obvious to anyone reading the Declaration. I hope that this post will delegitimise the attempted basis for the document and undo its purported legal elements.

International human rights law, or ‘IHRL,’ in this context is being used to refer to the jurisprudence and other outputs of the United Nations human rights protection mechanisms, as well as the foundational Covenants and Conventions which establish the institutions and principles of international human rights law.

International human rights law is not static or originalist. One of the first things we teach our human rights law students about the United Nations system is that the Committees/Treaty Bodies which monitor the Covenants and Conventions also exist to interpret them. In this manner, the jurisprudence of the Treaty Bodies should be taken into account when analysing the Treaties themselves.

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It is important to note from the outset that ‘sex-based rights’ are a fiction with the pretense of legality [edit: the original post used the phrase ‘legal fiction’ but it was pointed out to me that that assumes a legitimacy in the concept that it does not have] and do not in fact exist in the manner that the term is used. What is being claimed here is that ‘gender’ does not exist and that ‘sex,’ once assigned, is immutable. This analysis rejects this formulation. This analysis also rejects the Declaration’s attempts to argue from international human rights law (IHRL) sources, which are misguided, ill-applied, and in many places unsourced.

The Declaration attempts to argue from international human rights law that there are law-based ‘women’s rights’ which which inhere in people based on a certain set of physical characteristics correlating to an assignation of sex, which is then/has always been immutable. However, there is no basis for this assertion in IHRL. In fact, back as far as 2009, the Committee on Economic, Social, and Cultural Rights, in General Comment no. 20, noted that “Since the adoption of the Covenant, the notion of the prohibited ground “sex” has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles.” ‘Sex,’ in IHRL, includes the social construct of gender. ‘Sex’ as a prohibited ground of discrimination, does not merely refer to biological characteristics. This is established jurisprudence.

It is also notable that the CESCR, in this observation, acknowledges the evolution of terminology in IHRL – something which the WHRC Declaration resoundingly fails to do.

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The central documents cited by the Declaration are the Convention on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Comment no. 35, and the UN Declaration on Violence Against Women. A General Comment is a document written by a Treaty Body to explain, expand on, or interpret a certain Convention article or thematic issue. A UN Convention is a document binding on States Parties who are signatories. States must implement the provisions of the Convention in their law and policy, and they are reviewed by the Committee on the success of this implementation. A Declaration is a non-binding document.

The first and most important thing to note is that the CEDAW Convention does not in any way provide ‘sex-based rights’ to women or, as is asserted in the Declaration’s introduction, to lesbians. This claim is untrue for a number of reasons. Firstly, there are no such thing in IHRL as ‘sex-based rights.’ As explained repeatedly in this post, there are no rights which inhere in a person based on their physical characteristics. There is such a thing as protection from discrimination based on sex, wherein sex is one of a number of protected characteristics (for example, International Covenant on Civil and Political Rights, Article 26) – however, ‘sex’ is broadly understood to also refer to the social aspects of gender (see CESCR citation above).

Secondly, and rather obviously, lesbians are not a sex class and therefore could not have ‘sex-based’ rights, even if such a thing were possible.

Thirdly, CEDAW itself recognises that the categories of ‘man’ and ‘woman,’ which the Declaration believes to correlate to immutable physical sex, are in fact socially constructed. There is evidence for this in Article 5 of CEDAW, which seeks to “modify the social and cultural patterns of conduct of men and women.” This has been extensively discussed by prominent legal scholar and expert on law and gender, Professor Dianne Otto. I have also written on this, extracted here:

“…Otto reads CEDAW itself as open to an interpretation which validates social gender identities, as seen in the Introduction and Article 2(f), which both refer to gender roles and customs and practice as social constructions which must be changed in order to create meaningful equality between men and women… Although these passages do not themselves disrupt the sex binary, they form a clear acknowledgement that ‘men’ and ‘women’ are identities which have, and are governed by, social roles rather than being purely biologically based.”

Any construction of CEDAW – or indeed, of IHRL in general – which attempts to claim that ‘sex’ is an immutable biological category and that ‘gender’ is not a legitimate concept runs counter to years of scholarship and the statements of the UN Committees themselves.

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One paragraph in the Declaration’s introduction posits that “[r]ecent changes replacing references to the category of sex, which is biological, with the language of ’gender’, which refers to stereotyped sex roles, in United Nations documents, strategies, and actions, has led to confusion which ultimately risks undermining the protection of women’s human rights.” This sentence needs to be broken down to have its nonsensical basis understood.

Firstly, ‘biological sex,’ following Judith Butler’s work, can also be seen as a socially constructed phenomenon. It is not untrue to say that bodies have physical characteristics, but those physical characteristics are not immutable. Sex characteristics can be changed. Sex characteristics are also not dyadic – they do not split neatly into two boxes, but come in many different variations. The fact that we have named categories for the two majority physical presentations of humans does not mean that those are either the only two options, or that those are eternal and fixed categories. People are assigned to a sex category based on their (usually) observed physical characteristics at birth. Sexed categories are human inventions. Therefore, to attempt to inhere immutable human rights in people based on their physical characteristics at birth is an absurd proposition.

Secondly, ‘gender’ does not refer to “stereotyped sex roles” anywhere in IHRL, which is what is being claimed. The definition adopted by the United Nations is that which comes from the Yogyakarta Principles (2007), a non-binding but highly influential international document. The YPs state that 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.”

This is the definition accepted by many of the UN human rights bodies, in particular the Office of the Independent Expert on Sexual Orientation and Gender Identity, which has repeatedly cited it. Nowhere does it refer to “stereotyped sex roles.” Nor does the Declaration give any sense of what a ‘sex role’ is, how one can be stereotyped, and how the use of the term ‘gender’ could give rise to any such “confusion.”

Lastly, and once again, there is no proof given of how any of this could “undermin[e] women’s human rights,” or, indeed, where these unspecified rights which are being purportedly undermined are located in law.

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The next paragraph goes on to state that “[t]he confusion between sex and ‘gender’ has contributed to the increasing acceptability of the idea of innate ‘gender identities’, and has led to the promotion of a right to the protection of such ‘identities’, ultimately leading to the erosion of the gains made by women over decades. Women’s rights, which have been achieved on the basis of sex, are now being undermined by the incorporation into international documents of concepts such as ’gender identity’ and ‘Sexual Orientations and Gender Identities (SOGIES)’.”

(It is the most minor of points, but as we are discussing law, let’s be accurate: the acronym is SOGIESC and it stands for Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.)

This paragraph is worrying for a number of reasons. From a social point of view, it attempts to delegitimise the concept of gender identity and turn it into a scare-quoted falsity. From a legal point of view, it seems to be making the argument that gender identity should not be protected, and indeed, that it has been a mistake to rank it as a protected characteristic or a denotation of legal status. It conflates a right to protection of gender identity (on a side note, I disagree with the quasi-legal terminology here too – gender identity can be a protected characteristic, or it can be a recognised legal denotation, but there is no such thing as a ‘right to the protection of gender identity’) with a backslide in women’s rights, which is intellectually dishonest and profoundly false. If there has been an erosion of women’s rights, it is because of the forces of patriarchy and misogyny which work to oppress all women – cis and trans. It is not to do with the availability of legal gender recognition, and I cannot imagine where it could be legitimately argued in human rights law that legal gender recognition, or the protection from discrimination based on gender identity, has affected any gendered right or protection offered to women.

It becomes clear that what the Declaration is attempting to do is put forward a case for the elimination of ‘gender identity’ from human rights law, and it is then possible to extrapolate from that, that the document would happily see all legal protections removed from trans people. This is particularly clear when, following a misapplication of the Yogyakarta Principles definition, the Declaration states that “the concept of ‘gender identity’ has enabled men who claim a female ‘gender identity’ to assert, in law, policies, and practice, that they are members of the category of women, which is a category based upon sex.” Trans women are, of course, women – not men. However, the Declaration refuses to refer to them as such. This analysis will try to limit its repetition of this transphobic rhetoric, but it is to be noted that this is how the Declaration refers to its targets. It is not subtle.

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Moving on to the next incorrectly applied IHRL document, the Declaration then attempts to utilise CEDAW General Comment no. 35, on violence against women, to prove a point. However, in a particularly egregious misstep, it attempts to do this by choosing a quote which – in its full form – contradicts the point it is trying to make.

The Declaration quotes: ““General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include…being lesbian.””

However, the General Comment itself continues: “…being lesbian, bisexual, transgender or intersex…”

This is just outrageously, indefensibly, intellectually dishonest. Not only is the Declaration attempting to use a piece of CEDAW Committee jurisprudence to further its own ends, it is blatantly mischaracterising the nature of the discriminations acknowledged by that General Comment, which include discrimination based on transgender identity – where is therefore acknowledged by the Committee to be real! Not only that, but General Comment 35 itself, when setting out its definitions of violence against women, states that “The concept of “violence against women”, as defined in general recommendation No. 19 and other international instruments and documents, has place[d] an emphasis on the fact that such violence is gender-based. Accordingly, in the present recommendation, the term “gender-based violence against women” is used as a more precise term that makes explicit the gendered causes and impacts of the violence.” (paragraph 9)

Violence against women is recognised as gender-based. Transgender women are recognised by the CEDAW Committee as women who are affected by this violence and indeed, by intersecting forms of discrimination that flow from this facet of their identity. It is counter to everything expressed by the Committee to claim otherwise.

Likewise, the attempted use of Articles 4, 7, and 10 CEDAW by the Declaration to try to remove trans women from participation in gendered public quotas, political life, and sports, also run counter to modern interpretations of the Convention.

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The next document in attempted use by the Declaration is the UN Declaration on the Elimination of Violence Against Women (UNDEVAW, 1993). The UNDEVAW states that “For the purposes of this Declaration, the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women…”. The Declaration, however, makes the unfounded claim that the definition of violence against women in the UNDEVAW is “based on sex and not on ‘gender identity’.” This is clearly contradicted in the wording of the UNDEVAW itself, which recognises violence against women as “gender-based.”

The Declaration goes on to make more assertions regarding CEDAW General Comment 35, including that it requires the collection of “sex-disaggregated data,” which is untrue. The reference made to data disaggregation in the General Comment is as follows: “[states should e]stablish a system to regularly collect, analyse and publish statistical data on the number of complaints about all forms of gender-based violence against women… All data should be disaggregated by type of violence, relationship between the victim/survivor and the perpetrator, and in relation to intersecting forms of discrimination against women and other relevant sociodemographic characteristics, including the age of the victim/survivor.”

The attempted citation in the Declaration, which does not come from an output of the Treaty Bodies or a Convention, is from the “UN Women Gender Equality Glossary,” which is at best an advisory document and essentially auxiliary to the actual jurisprudence of the United Nations.

The use of these points around violence against women is intended to make a case that allowed trans women to self-define as women will disturb both the ability of cis women to access “single-sex” spaces and the ability of states to record accurately the identities of perpetrators of violence. It is clear that the implication here is that trans women are likely to be violent against cis women – again, something which has no cited basis as a claim.

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Two final remarks about the Introduction to the Declaration. One is its odd turn into a brief argument against surrogacy, which it seems to conflate with trans women wishing to be recognised legally as mothers (although it is very unclear on this point). While it is true that CEDAW does affirm the “social significance of maternity,” there is no link whatsoever between a recognition of the capacity to give birth and the need to protect reproductive capacity, and the recognition of trans women as women or their right to refer to themselves as mothers if they have children. This is a purely semantic argument which then veers into the outright bizarre, stating that “[t]he exploitation and commodification of women’s reproductive capacity also underpins medical research which is aimed at enabling men to gestate and give birth to children.” Again, there is no reference for this, which is likely because no possible reference exists for it. It is certainly not a matter of, or for, international human rights law.

It then, to be colloquial, says the quiet part loud: “The inclusion of men who claim a female ‘gender identity’ within the legal categories of woman, of lesbian, and of mother threatens to remove all meaning from these categories, as it constitutes a denial of the biological realities on which the status of being a woman, being a lesbian, and being a mother are based.” This is clearly a call for the denial of recognition to trans women, based on spurious notions of biology and a strange conflation of sex/gender, sexual orientation, and parenthood into apparently ‘legally’ similar classes.

Finally for the Introduction, the Declaration turns its attention to the matter of trans children. In 2013, the UN Committee on the Rights of the Child in General Comment no. 15 on the Right to Health stated that “States parties have an obligation to ensure that children’s health is not undermined as a result of discrimination, which is a significant factor contributing to vulnerability. A number of grounds on which discrimination is proscribed are outlined in article 2 of the Convention…These also include sexual orientation, gender identity and health status, for example HIV status and mental health.” It is thereby understood that trans children should not be discriminated against in healthcare on the basis of their gender identity.

Nevertheless, this is exactly what the Declaration calls for, stating that “[t]he concept of ‘gender identity’ is increasingly used to ‘gender reassign’ children who do not conform to sex stereotypes, or who are diagnosed with gender dysphoria.” The idea that children are being pressured or forced into transition, which is what is implied here, is also uncited, unproven, and not borne out by the facts of increasingly long waiting times for healthcare for trans children in many jurisdictions, including the United Kingdom.

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The Preamble of the Declaration repeats many of the inaccuracies and uncited claims of the Introduction, therefore the same analyses will not be repeated where they arise. I do wish to make some points regarding the Preamble and the following Articles. Firstly, the opening provision of the Preamble cites a pick-and-mix of international legal sources which do not actually state or add anything relevant to the argument. This is obviously intended to give some legal validity to what follows; it does not. Likewise, the list of international conferences and summits (which, notably, ends in 1995) does not add anything to the argument except window dressing; there is no link offered between these and anything which follows. The Preamble, again, displaying no recognition of the evolution of IHRL or the teleological (contextual or evolving) nature of the interpretation of the Treaties, states that “in the first decades of the United Nations human rights approach there was a clear understanding that discrimination against women was based upon sex.” It is submitted and it has been demonstrated that this understanding has evolved through the actions of the United Nations bodies themselves.

This entire section is written in the style of an international human rights Convention, but do not be taken in by the quasi-legal style – it repeats the same baseless and harmful claims that were demonstrated in the Introduction. For example: “men who claim a female ’gender identity’ assert in law, policies and practice that sexual orientation is based upon ‘gender identity’ rather than sex, and seek to be included in the category of lesbian; and that this results in the erosion of the sex-based human rights of lesbians.” There is, I repeat, no such thing as the “sex-based human rights of lesbians.” Lesbian is a sexual orientation, not a sexed class (such as it is argued that ‘man’ and ‘woman’ are). Lesbians, as a group, do not have specific human rights designated in law. The only thing approaching this is that it is not permissible, for example, to discriminate based on sexual orientation – but there is no specific right conferred on anyone by virtue of being a lesbian that cannot also be claimed by a gay man or a bisexual/queer person.

This is another baseless claim worth highlighting: “organizations that promote the concept of ‘gender identity’ attempt to limit the right to hold and express opinions about ‘gender identity’ by promoting attempts by state agencies, public bodies and private organizations to use sanctions and punishment to compel persons to identify individuals on the basis of ‘gender identity’ rather than sex.” There is no law that I am aware of, and I have cowritten three volumes of a global report on gender recognition law as well as a PhD thesis on international law and gender identity, which attempts to limit the right of anybody to hold opinions about gender identity or impose legal sanctions on any individual or party, public or private, for holding an opinion. Actively participating in hate speech or harassment is, of course, sanctioned by law in many jurisdictions, but unless one is partaking in that sort of activity, that is not a concern.

And another: “the concept of ‘gender identity’ is used to undermine the right of lesbians to define their sexual orientation on the basis of sex, and to assemble and associate on the basis of their common sexual orientation, and without including men who claim to have female ‘gender identities’.” Lesbians do not have a legal right to define their sexual orientation. There are multiple, competing definitions of ‘lesbian’ within the community, and the individual has the right to believe in whichever they choose. They do not, however, have a legal right to proscribe the others. The right of freedom of assembly applies to everyone, including trans women, who are entitled to request entry to a lesbian group if they wish (and to be denied entry to a private group if that is what the group itself desires). There is no human rights breach involved.

Equality law in a domestic jurisdiction, such as the Equality Act 2010 in the UK, covers admittance to “single-sex spaces” such as refuges. It differs across jurisdictions, but as a rule, trans women are allowed into spaces designated as being for women, unless there is a compelling and legitimate reason to the contrary – and even then, proportionate and reasonable accommodation must be made for their protection. To state, as the Declaration does, that “the erasure of sex-specific actions, strategies and policies for women and girls will undermine decades of United Nations work to recognize the importance of women only services in disaster zones, refugee camps, and prisons, and in any context where the use of mixed-sex facilities would be a threat to the safety, dignity and protection of women and girls, and particularly vulnerable women and girls” is false. (It is also, on a side point, a bizarre way to attempt to link the well-worn argument about women in prison to the work of the United Nations in disaster zones.)

The next paragraph of the Preamble makes an ideological claim: “the concept of ‘gender identity’ was developed specifically out of a body of postmodern and ‘queer theory’ in the West and is being disseminated through powerful organizations internationally, including in countries where the term ‘gender’ does not exist in local languages and cannot easily be understood.” Again, no citation or proof is offered of this, nor are these powerful organisations named. There is also a distinct neocolonialist flavour to the claim that the concept of ‘gender’ is being exported to countries where it did not previously exist – particularly because many countries outside of the West have complex and diverse notions of gendered identities which do not correspond to binary sex designations, and in fact, it could be and has been argued elsewhere, including by this author, that the sex/gender binary is in fact a Western imposition on non-Western cultures.

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Lastly, the Preamble returns to the topic of transgender children. It attempts to use the UN Convention on the Rights of the Child and the Joint General Recommendation of the CEDAW Committee (no 31) and the Committee on the Rights of the Child (no. 18) on harmful practices, to argue that allowing children to access puberty-blocking medications (which is a safe and reversible practice) is in fact a ‘harmful practice’ under this Recommendation. This is the last non-repeated attempted substantive legal claim made in the Declaration, so I will unpack it somewhat.

For context, here is the background definition of a “harmful practice”: “persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering.” The General Recommendation goes on to state that:

“… practices should meet the following criteria to be regarded as harmful:

(a) They constitute a denial of the dignity and/or integrity of the individual and a violation of the human rights and fundamental freedoms enshrined in the two Conventions;

(b) They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;

(c) They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors;

(d) They are imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.”

Examples of harmful practices include child marriage or genital cutting. The Declaration attempts to argue that the consensual provision of safe, reversible medication to children falls under the same ambit as practices such as these. This is mostly done by stating repeatedly, and again, without sourcing, referencing, or proffered proof, that transition-related healthcare practices “involve medical interventions that carry a high risk of long-term adverse consequences on the physical and psychological health of children who are not developmentally competent to give full, free and informed consent to such medical interventions.”

This is intended to be an international document, so the authors must be aware that they are writing outside of a domestic jurisdiction – which is where decisions about medical law are usually made (such as the recent Bell v Tavistock cases in the UK). There are therefore varying standards as to the provision of puberty blockers, from complete restriction, to access based on the capacity to consent of the child. However, the capacity of the child is not a condition taken lightly. Jurisdictions have differing legal standards for determining the capacity to consent to medical treatment – however, the Declaration rides roughshod over legal precedent across multiple jurisdictions by claiming that no child, anywhere, has capacity to consent to puberty blockers.

Capacity judgments often refer to international human rights law standards, particularly the UN Convention on the Rights of the Child, for relevant principles. There are several provisions which apply when it comes to the provision of medical treatment to children: the best interests of the child (Article 3), the child’s right to life, survival, and development (Article 6), the right to be heard (Article 12), the right to freedom of expression (Article 13), the right to the highest attainable standard of health (Article 24). A brief scan of the UNCRC would show that a blanket designation of children as incapable to consent to medical treatment is incompatible with their rights under IHRL.

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The Articles of the Declaration are also repetitive of many of the misuses of IHRL which have previously been discussed in this post, and do not require further investigation. It would suffice to say that they are nakedly anti-transgender rights and anti-participation of trans persons, and in particular trans women, in public life.

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This has been a long post which has attempted to argue from IHRL that there is no factual basis for the claims made in the WHRC Declaration, and that they are in this author’s opinion, based on misapplication, incorrect citation, and general misuse of international human rights law sources. In a world where international human rights law has evolved so much on the question of sex/gender that there is now a mandate-holder known as the UN Independent Expert on Sexual Orientation and Gender Identity, it is patently obvious that any attempt to argue that gender identity is an unrecognised or unrecognisable concept is regressive and contrary to current understandings of human rights.

I will give the last word to the current UN IESOGI, Victor Madrigal Borloz, from his recent report on “The Law of Inclusion” (A/HRC/47/27):

“The notion that there is a gender norm, from which identities and expressions vary or depart, is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights. Among these misconceptions is the idea that it is a legitimate societal objective that persons adopt roles, forms of expression and behaviours that are considered entitlements or burdens according to their sex assigned at birth. Only by acknowledging the stereotypes, power asymmetries, inequality and fundamental violence that lies at the foundation of this system does the State comply with its obligation to address the violence and discrimination that it fuels, with its harrowing impact on women and girls in every corner of the world, including lesbian, bisexual and trans women; on gay, bisexual and trans persons; on other gender-diverse persons; and on intersex persons.”

The Gender Recognition Act 2015: A Long Time Coming

Although the Irish Gender Recognition Act 2015 was signed into law in 2015, it was by no means a new idea by then. With the Lydia Foy judgments in 2002 and 2007, commitments in Programmes for Government starting in 2009, and parliamentary processes including public consultations stretching over four years, the GRA was a lengthy and highly debated process which would eventually leave Ireland with an internationally renowned, human rights-compliant legislation.

There has been a myth circulating of late that the Gender Recognition Act was ‘snuck in’ or somehow secretly passed without the proper legislative scrutiny. The background to this is a mistaken belief that the Act was brought in on the back of marriage equality in May 2015 and therefore was not given adequate time for debate. This is entirely false.

The fight for legal gender recognition in Ireland began with Dr Lydia Foy’s first challenge to the Irish High Court. Dr Foy had been attempting to change her birth certificate registration from male to female without success, as Irish administrative law did not allow for that at the time. Her case was decided in 2002, and she was unsuccessful (Foy 1; 1). The judgment in the case is certainly ‘of its time’ – highly pathologised and following the precedent of the judgments of the European Court of Human Rights to date. However, it is notably sympathetic to the transgender community and ends with a call to the Oireachtas to “fully debate what changes, if any, are required.”

Two changes then took place which allowed for the second Foy case to be brought. The European Court of Human Rights handed down its judgment in Goodwin v UK, (2) which held that legal gender recognition was a human right protected by the European Convention on Human Rights; and Ireland implemented the European Convention on Human Rights Act, which required Irish law to be interpreted in compliance with our obligations under the Convention. What this meant was that the Goodwin decision could now be applied by an Irish Court.

Dr Foy, who had appealed to the Supreme Court following her 2002 loss, now found her case handed back to the High Court for another hearing. This was decided in 2007 (3), and, applying Goodwin, Judge McKechnie found in her favour. Irish people should be allowed to access legal gender recognition. He was strongly critical of the Irish Government’s inaction on the subject and issued a Declaration of Incompatibility. This meant that the Government was issued notice that they were not in compliance with their obligations to the European Convention on Human Rights, and that they should update their laws to be in compliance.

At the same time, a grassroots movement was starting to build around transgender people in Ireland. The Transgender Equality Network Ireland (TENI) was founded in 2006 and helped to bring the community into national discourse. Meanwhile, the Free Legal Advice Centres (FLAC), who had provided Dr Foy with legal representation, had been building a coalition of NGOs at home and abroad, who were interested in the question.

On the international stage, Ireland was also being criticised by human rights institutions for its failure to act on gender recognition. The Council of Europe Commissioner for Human Rights (4), the United Nations Human Rights Committee (5), and the EU Fundamental Rights Agency (6), all rebuked the Government in 2008. Something had to be done.

In 2009, the Fianna Fáil-Green Party Government included “legal recognition of the acquired gender of transsexuals” in their Renewed Programme for Government publication (7). Following consultation with FLAC and TENI, they also withdrew their appeal against the Foy 2 decision. The FF/GP Government also established a Working Group to consider drafting legislation for gender recognition. The Report of the Working Group was published in 2011 (8), by which time a new Fine Gael-Labour Government had been formed, which claimed that gender recognition was among its legislative priorities (9).

The Report of the Gender Recognition Advisory Group contained some provisions which are in today’s Act, but several others garnered strong criticism from human rights campaigners. Among them were medical requirements for transition, and a ‘forced divorce’ clause – because at the time, partners of the same legal gender could not be married in Ireland. The Government promised to develop a Heads of Bill (a scheme for a piece of legislation) after the Report was issued, but the process stalled.

Finally, in 2013, Dr Foy issued new proceedings to enforce her 2007 judgment, which spurred both Government and Opposition Oireachtas members to act. Two Private Member’s Bills were issued, by Aengus Ó Snodaigh TD (10) and Senator Katherine Zappone. Both Bills were based on a self-declaration model with no medical criteria for gender recognition. By contrast, the draft Heads of Bill published by the Government in July 2013 were more restrictive, and required a “supporting statement” from an applicant’s physician (11).

After the Heads of Bill were published, the Joint Oireachtas Committee on Education and Social Protection held hearings on them with input from “key individuals and groups.” (12) These included LGBTQ+ organisations such as TENI, TransparenCI, BeLonGTo, and LGBT Noise. The Committee issued a report on the Bill in 2014 (13), recommending that the provision on “evidence of transition” be “reconsidered.” It is notable that at this point, the acceptance of the self-declaration model was not just confined to trans activists and advocates – it was the strong recommendation of an Oireachtas Committee and backed by TDs from both Government and Opposition parties. However, the Revised Scheme of the Gender Recognition Bill, introduced in 2014, still required adults to obtain a statement from their primary treating physician.

Professor Michael O’Flaherty also wrote an editorial piece in the Irish Times while the Bill was before the Oireachtas, which was cited as influential by several legislators. He observed that the medical requirements of the Bill, among other features, were contrary to international human rights law (14).

This revised Bill was introduced in the Seanad in January 2015 and went to the Dáil for second-stage debate. Interestingly, some TDs linked the struggle for transgender rights to the founding aspirations of the nation. Patrick O’Donovan TD cited “the 1916 Rising, where the aspiration was to cherish all the children of the nation equally.” John Lyons TD referred to Elizabeth O’Farrell, who was “airbrushed out of the picture depicting the moment of surrender” following the Rising, adding that “I know, TENI knows, and transgender people know what it is to live in the shadows of society and not be recognised as the people we are… For the first time those who have been airbrushed out of society because they are transgender will be… recognised.” (15)

The Bill was referred back to the Dáil Select Subcommitee on Social Protection for the its Committee stage, and it was at this point that Minister for State Kevin Humphreys stated that the Government was tabling an amendment which would remove any requirement to provide a letter of validation from a medical practitioner for a person aged over 18 years (16). The Bill passed the Dáil with no further substantive amendments and returned to the Seanad to be finalised. It was passed into law in August 2015.

A few remarks on these debates and the process of passing the Bill: firstly, lawmakers were exceedingly willing to listen to LGBT people, particularly trans people, and their advocates. Secondly, the debates displayed almost no animosity toward the Bill. Rather, most of the disagreements that arose came about because the parliamentarians felt it was not progressive enough!

Lastly, it was notable that the passage of this Act was presented as a matter of pride for the Irish State; that Ireland would be a world leader in the protection of trans peoples’ rights in frequently noted during the legislative process. The citations of the 1916 Rebellion and the Proclamation of the Republic, in particular, as well as the noted rejection of the UK’s Gender Recognition Act 2004 as a template during the debates, align trans rights with the ideals of the founders of the Irish State. In a way, this is one of the most revolutionary aspects of the legislation’s progress – Irish politicians asserting Irish values to expand our conception of gender identities and establish trans rights in this country.

Dr Sandra Duffy holds a PhD in international human rights law, focusing on gender identities and gender recognition law. She is co-author of the ILGA Trans Legal Mapping Report, which catalogues global gender recognition laws.

(1): Foy v an t-Ard Chláraitheoir 1 [2002] IEHC 116

(2) Goodwin and I v United Kingdom [2002] Application no. 28957/95

(3) Foy v an t-Ard Chláraitheoir 2 [2007] IEHC 470

(4) Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, on his Visit to Ireland, 26-30 November 2007, CommDH(2008)9.

(5) CCPR/C/IRL/CO/3

(6) EU Fundamental Rights Agency, “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1 – Legal Situation,” 2008.

(7) Department of An Taoiseach, Fianna Fáil and Green Pary, Proposed Renewed Programme for Government, October 2009.

(8) Gender Recognition Advisory Group Report to Joan Burton TD, Minister for Social Protection, 15th June 2011.

(9) Department of An Taoiseach, Fine Gael and Labour, Government for National Recovery 2011-2016, 5th March 2011.

(10) Gender Recognition Bill 2013, no 56 of 2013.

(11) General Scheme of Gender Recognition Bill 2013.

(12) Joint Oireachtas Committee on Education and Social Protection, General Scheme of Gender Recognition Bill 2013: Discussion, 23rd and 24th October 2013

(13) Joint Oireachtas Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill 2013, January 2014.

(14) Professor Michael O’Flaherty, “Gender Recognition Bill is in violation of international human rights law,” The Irish Times, 10th February 2015.

(15) Dáil debates, Gender Recognition Bill 2014 [Seanad] Second Stage (Resumed), 5th March 2015.

(16) Dáil Éireann, Committee on Education and Social Protection: Select Subcommittee on Social Protection, Gender Recognition Bill 2014: Committee Stage, 17th June 2015.

AP, Garcon, and Nicot v France – ECtHR ends forced sterilisation on transgender persons

On April 6th, the European Court of Human Rights handed down its judgment in AP, Garcon, and Nicot v France, ruling that an infertility/sterilisation requirement in States Parties’ gender recognition law is a violation of the Article 8 right to privacy. As the decision is currently only available in French on HUDOC, what follows is this author’s translation and comment on the issues and rulings. I note that both the French text and the English press release on this judgment use ‘le réquerant’ and male pronouns for the applicants; I do not find this correct or appropriate, as the applicants are all transgender women. I will be using female pronouns in their regard.

Until recently, the application process for gender recognition in France involved a petition via the courts which could include demands for medical markers of gender transition, including ‘sex reassignment’ surgical interventions which result in infertility. In late 2016, however, the law was updated (by Loi n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle) to allow for legal gender recognition without surgical requirements. This law inserted new sections into article 61 of the French Code Civil, as follows:

Art 61-5 (to be inserted) Any adult or emancipated minor can make an
application to have their gender corrected in the actes de l’etat civil (civil registry).
They must demonstrate sufficient facts to support their claim: this can include
that they appear publicly to belong to the affirmed sex; that they are known in
that sex to family, friends, and colleagues; that they have changed their forename
to one of the affirmed sex.
Art 61-6 (to be inserted) The application is brought before the TGI. The applicant
must declare her free and informed consent to the change of documents and
bring any necessary supporting evidence. Not having undergone medical
treatment, surgery, or sterilisation cannot be bars to the change. The decision-maker
confirms that the applicant satisfies the conditions in 61-5 and orders the
modification of the information in the actes de l’état civil.
Art 61-7 A note is to be made of the change of sex and, if necessary, of forename,
in the margin of the applicant’s birth certificate within 15 days of the judgment,
at the request of the procureur de la République.

(Translation and paraphrasing, this author’s, from Chiam, Duffy, and Gil, ILGA Trans Legal Mapping Report 2016.)

AP v France (as I will be abbreviating it) involves three applicants – cases 79885/12, 52471/13 and 52596/13 – alleging that the demands made by the French legal system before they could be granted legal gender recognition (LGR) were a violation of their Article 8 ECHR rights. The demands in question were that a candidate for LGR had to establish “la réalité du syndrome transsexuel” including irreversible physical changes. Resulting from these demands, AP, the first applicant, also alleged a breach of her Article 3 ECHR right to freedom from cruel, inhuman, and degrading treatment, due to an invasive medical examination she had been required to undergo, and a breach of her Article 6.1 ECHR right to due process taken in conjunction with Article 8 ECHR, as the internal authorities which regulated LGR had made a manifest error in concluding that she had not proven that she had made irreversible physical changes. The second and third applicants, Garcon and Nicot, also alleged violations of Article 14 ECHR, the right to freedom from discrimination, taken in conjunction with Article 8 ECHR.

Continue reading “AP, Garcon, and Nicot v France – ECtHR ends forced sterilisation on transgender persons”

Gender Identity at the United Nations

My most recent research project has involved compiling a report on gender identity and gender recognition in the Reports, Comments, and Concluding Observations of the United Nations Treaty Bodies and Special Procedures. The findings have had mixed success: in recent years the UN bodies have been more receptive to matters concerning sexual orientation and gender identity issues; however, explicit reference to gender recognition law or gender identity as distinct from the catch-all title of ‘LGBT persons’ are still uncommon.

My research uses the term ‘gender-variant/variance’ to address all non-cisgender persons, including under this remit transgender, transsexual, non-binary, and intersex persons. In doing so I also hope to avoid the imposition of Western terms on persons from cultures which do not have a direct equivalent of our ‘transgender’. Finally, in some countries – such as India, one of the jurisdictions I will be researching for my thesis – there is no clear boundary between sexual orientation and gender identity as it is widely considered that homosexual acts or desires constitute in themselves a form of gender variance. In a project which seeks to challenge the normative functions of legal gender, avoidance of over-categorisation is important.

In legal scholarship, gender identity is often mentioned in the same breath as sexual orientation, despite presenting some very different challenges to the law of human rights; this report acknowledges instances in which a general ‘gender and sexuality minorities’ category is used, while attempting to draw forward true instances of consideration of gender identity and gender expression issues. Instances in which the institutions acknowledge queer and intersex identities are highlighted as marks of progress in inclusion – however, in many cases they are omitted within the reports and observations emerging from the UN.

As McGill’s history of sexual orientation and gender identity before the UN ([2014] 3 Can. J. Hum. Rts. 1) shows, the first time gender identity was explicitly mentioned in UN proceedings was in 2006, with the Joint Statement on Human Rights Violations based on Sexual Orientation and Gender Identity before the Human Rights Council. The General Assembly followed in 2008 with the adoption by the UN General Assembly of the Statement on Human Rights, Sexual Orientation and Gender Identity. This resolution, while non-binding, marked the first acknowledgement by the General Assembly of the human rights of sexuality- and gender-based minorities.

2008 is also the point of departure for many of the UN institutions in acknowledging gender identity as a factor in discrimination and persecution of minorities and individuals. The adoption of the General Assembly resolution, along with the signing of the (non-UN, but influential) Yogyakarta Principles in 2007, brought both sexual orientation and gender identity to the fore and led to attention from both States Parties and Treaty Bodies/Special Procedures. In the years between 2008 and 2016, the jurisprudence of the Treaty Bodies has seen a continuing upward trend in references to LGBT/SOGI issues. However, transgender and gender-variant persons, as well as intersex persons, are still often sidelined by the institutions, which in many cases tend to consider as analogous homophobic discrimination and SOGI-based discrimination.

The opinions of Treaty Bodies and Special Procedures recorded in my report are not entirely based in legislative proposals – although some are made – but rather, they show the frequency of discrimination and persecution that occurs when transgender persons are marginalised and illegitimised. As an argument for the importance of gender recognition law, therefore, they show the necessity of decriminalising, addressing, and including gender-diverse identities into the scheme of international human rights law.

The Committees which engage the most with gender identity issues are the Human Rights Committee (HRC), the Committee on Economic, Social, and Cultural Rights (CESCR), and the Committee on the Elimination of Discrimination Against Women (CEDAW). These are not surprising findings – where international law meets gender variance, in the main, involves legal recognition (a civil/political right); access to healthcare (a socioeconomic right); and discrimination on the basis of gender. While it is true that almost all gender-variant individuals will encounter discrimination on the basis of their gender identity/expression in some situations, CEDAW concerns itself greatly with the dangers of sexual and other violence suffered by transgender women who are often attacked in situations like enforced confinement in men’s prisons.

General Comment 22 of the CESCR, on the right to sexual and reproductive health and published earlier this month, explicitly recognises the need for recognition of gender-variant persons, stating:

For the purpose of this General Comment, references to LGBTI persons include, in addition to lesbian, gay, bisexual, transgender and intersex persons, other persons who face violations of their rights on the basis of their actual or perceived sexual orientation, gender identity and sex characteristics, including those who may identify with other terms.

This is the most explicit statement of recognition and personhood of all queer and gender-variant identities to be found in the UN’s collective output on the subject so far. The addition of intersex to the protected designation ‘LGBT’ shows a willingness to promote the welfare of those with non-standard sexual characteristics, who may identify within the binary or otherwise. It is to be hoped that the UN will continue to include a broader range of physical and personal identities in their statements, and in contexts other than healthcare. While it is undeniable that healthcare is an area which disproportionately engages gender-variant persons, addressing these persons mainly through the lens of healthcare does continue to associate gender variance with pathologisation. A statement on the civil/political right of such persons to legal gender recognition would be welcome.

The countries most targeted for recommendations by the UN Committees are the Russian Federation, Ukraine, and Kyrgyzstan, all of which operate restrictive laws around freedom of expression and assembly of queer and gender-variant persons (“propaganda laws”). The Committees find it concerning that these laws, ostensibly for the protection of children from immoral factors, are used instead to stigmatise and criminalise queer and gender-variant persons who attempt to speak or associate freely. Ukraine also comes under heavy criticism (CCPR/C/UKR/CO/7, paragraph 10) for its treatment of persons seeking medical help in gender transition as psychiatric patients with a compulsory confinement to a psychiatric hospital for up to 45 days, as well as mandatory surgery. The Committees also remark on the criminalisation of transgender identities in the Gulf states such as Iran and Kuwait.

With regard to the Special Procedures, the Rapporteurs who concern themselves most with gender and sexuality-based minorities are the Special Rapporteurs on Health, on Human Rights Defenders, on Violence Against Women, and on Extrajudicial, Arbitrary, or Summary Executions. The latter two are the unfortunate consequence of the violence suffered by many gender-variant persons, particularly transgender women or female-presenting persons – in particular in Guatemala, Mexico, and Turkey.

The Special Rapporteur on Human Rights Defenders has been a consistent voice against the adversity experienced by defenders working with gender- and sexuality-based minorities since 2002 (E/CN.4/2002/106/Add.2 – the earliest statement on ‘LGBT’ persons I located in the UN reports). The mandate’s reports have been consistent in addressing ‘sexual orientation and gender identity’ or ‘LGBTI’ issues in the intervening years. This attention illustrates the difficulties of working for causes such as gender recognition, which face cultural barriers in many parts of the world.

The Special Rapporteur on Health has, unsurprisingly, been one of the main promoters of the rights of gender- and sexuality-based minorities, beginning in 2004 (E/CN.4/2004/49) with a statement on discrimination against “many people with lesbian, gay, bisexual and transgender identities or conduct” – quite a progressive statement, including gender expression (“conduct”) as well as identity. The mandate has also stated its opposition to medical intervention on children born intersex, on the basis of bodily autonomy. Its statement regarding intersex persons in childhood development (A/70/213) also included recognition that

Deeply rooted stereotypes around gender dichotomy and medical norms about male and female bodies have led to the establishment of a medical practice of routine interventions and surgeries on intersex people, including irreversible genital surgery and sterilization.

This strong statement on bodily autonomy and sex characteristics shows a willingness to engage with the most sidelined minorities in this area, and is a promising development for UN output and practice.

While much of the UN’s engagement with gender identity issues is not strictly based on the kind of legal recognition which is the basis of my research thesis, the knowledge base gained from seeing how international human rights institutions engage with gender-variant identities and expressions allows for a better understanding of the norms, cultural and regulatory, involved in human rights law in this area. As my research involves consideration of how domestic legal systems tackle issues around gender recognition, it necessarily requires a basis in the dominant discourse of international human rights law. I will continue to survey these institutions in the next stage of my research, exploring gender identity and recognition before the regional human rights systems (in particular, the European and Inter-American Courts of Human Rights).

Reflections on the UK Trans Equality Report

The UK House of Commons Trans Equality Report 2016, was published today, January 14th, and contains several dozen recommendations for policy shifts and improvements in the UK’s treatment of its gender-variant citizens. Unlike Ireland, which started with the possibly dubious advantage of a clean slate in drafting its Gender Recognition Act last year, the UK has had a GRA in place since 2004. The Report recognises that this was, at the time, ‘world-leading’; it was implemented in good time following the decision of the ECtHR in Goodwin v UK (2002). However, the UK GRA 2004 has not aged well, and some of its provisions – although they may have been progressive at the time – now seem woefully lacking by best practice standards.

The Report has several interesting concentrations, among them the lack of recognition of non-binary individuals. A minority within a minority, persons who choose to identify as genderqueer, agender, or other identities operating outside of the male/female binary have been neglected in law even in comparison to binary-identified trans persons. By contrast to countries such as India, Pakistan, Nepal, and Bangladesh, neither the UK nor Ireland have a visible and vocal non-binary community (in the aforementioned jurisdictions, the phrase ‘third gender’ is often used as a catch-all which includes non-binary identities). However, there are similar, Westernised jurisdictions which recognise the right to identify as non-binary – Australia, since the case of NSW Registrar of Births, Deaths and Marriages v Norrie in 2014; Malta, with its Gender Identity, Gender Expression, and Sexual Characteristics Act 2015, to name two. The Report states that “[i]f Australia is able to implement such a policy, there is no reason why the UK cannot do the same,” a statement with which it is difficult to argue – and which could apply equally to Ireland.

Despite our progressive self-declaration legislation, Irish people may still only identify as either male or female. There is no facility for registering one’s identity outside of those options, which limits the freedom of gender-variant individuals to self-declare. The Yogyakarta Principles understand “gender identity” to mean “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”, which clearly allows for a spectrum of gender identities. Equally, Malta’s GIGESCA 2015 allows for recognition of intersex as an identity, and removes any requirement for medical procedures before a child’s sex can be registered. There are few convincing arguments as to why this is not a workable option for other jurisdictions. Concerns over the function of registries and the possibility of “confusion” if more than two options were offered is dispensed with in a clear and logical fashion in the Norrie judgment. If we are to allow for rights for transgender individuals, it would seem contrary to the spirit of such legislation for those rights only to be extended to persons falling within socially comfortable categories. It is social conservatism which holds us back on these matters, there is no doubt; it is worth remembering that we are the ones who build the registry systems, and we are not stuck forever in their thrall in some manner of Kafkaesque bureaucratic labyrinth. So, I repeat: if Australia can do it, why can’t we?

The Report spends much time on the interactions between trans* persons and the medical system, and it is clear to see the dichotomy faced by practitioners in this area. While the journey toward best practice in trans* law is also by necessity a move toward depathologisation of what is a normal, if somewhat rare, element of the human condition, the fact that trans* individuals often require or wish for medical intervention is also an indisputable fact. The UK GRA 2004 places heavy emphasis on a medicalised model of being transgender, requiring testimony from a psychologist and a doctor that the applicant suffers from gender dysphoria and either has, or is to have, gender “reassignment” medical intervention. As not all trans*-identified persons wish to alter their physical presentation medically, this requirement is another barrier to gaining recognition rights for some sections of the community. In Ireland, the original draft of the Gender Recognition Bill included some medicalised requirements, but as the Bill made its way through the legislature, the effects of sterling campaigning by trans* lobby groups informed the lawmakers that such provisions would form an obstacle to uptake, and they were dropped.

The Report recommends that the NHS in the UK remove trans* health services from the realm of mental health, and instead consider them to be part of another branch of medicine (endocrinology is suggested as an option). This would be in line with the World Professional Association for Transgender Health’s Standards of Care, which distinguish gender-nonconformity (a state of being) from gender dysphoria (a physical and mental discomfort with the incongruity between one’s gender identity and physical presentation). The WPATH also recommends a model including both informed consent and ongoing medical monitoring for individuals undergoing major medical interventions, a recommendation which the Report endorses. While I cannot share the Report’s concern for resources with doctors “simply granting on demand whatever treatment patients request” – sounds a lot like more gatekeeping to me – I do agree that for clinical ethical standards there does need to be ongoing care when it comes to major medical decisions. It is a difficult line to walk between acknowledging the necessity of medical interventions and not simply reducing trans* persons to their physicality. It will be interesting to see how the UK government choose to address this question if they follow the Report’s recommendations.