The Gender-Binary

Logic of the Criminal

Justice System and
GBV provision:
Experiences of
Transgender and Non-
Binary Subjects

Dr. Ceylan Begüm Yıldız

[email protected]
Understanding the concepts
Do ‘sex’ and ‘gender’ mean the same thing?

• What do we mean by sex?

• What do we mean by gender?

 Catherine MacKinnon

MacKinnon, Catherine A. 1983. 'Feminism, Marxism, Method, and the

State: Toward Feminist Jurisprudence'. Signs 8(4): 635-658.
Catherine MacKinnon
 Judith Butler- Gender Trouble
‘Gender is the repeated stylization of the body, a set of
repeated acts within a highly rigid regulatory frame that
congeal over time to produce the appearance of
substance, of a natural sort of being’

• Gender is a performative

• Speech- act
Butler, 1999(1990): 9
Colonialism and Gender-Binary
The anti-Hijra legislation was introduced by the British coloniser in the
mid-1800s. Section 377 of the Indian Penal Code (1861) condemned the
act of homosexuality, whereas the Criminal Tribes Act (1871) made the
Hijra’s way of life completely illegal.

• Statecraft of categorisation and simplification

• It makes it easier to govern a population
 How many genders are recognised in the
UK?
• You can only apply to be recognised as male or female. Non-binary genders are not legally recognised in the UK.
Apply for a Gender Recognition Certificate if you want your affirmed gender (sometimes called an ‘acquired gender’)
to be legally recognised in the UK.
• Having a certificate means you can:
• update your birth or adoption certificate, if it was registered in the UK
• get married or form a civil partnership in your affirmed gender
• update your marriage or civil partnership certificate, if it was registered in the UK
• have your affirmed gender on your death certificate when you die

• You do not need a certificate to:

• update your driving licence

• update your passport
• update your medical records, employments records or your bank account

It will not change your legal status as the father or mother of a child.
Gender Recognition Act 2004
The GRA describes “acquired gender” as the gender in which an applicant is living and
seeking legal recognition. The Government has explained that it is different from the sex
(male or female) recorded at birth and is instead, the gender the individual identifies
with. The GRA enables transgender people to achieve legal recognition in their acquired
gender and change their recorded sex on their birth certificate from male to female or
vice versa.

At present, there is no process in any part of the UK by which transgender people may
achieve legal recognition of their acquired gender based on self‑declaration only.
Following consultation, the UK Government has decided not to introduce a non-
assessment/self-identification process for legal gender recognition in England and Wales

Gender Recognition Act Consultation Outcome:

https://commonslibrary.parliament.uk/research-briefings/cbp-9079/
Census Data in England and Wales
The Census data found that 0.5% of participants identified as a gender that does not match the sex they were
assigned at birth. The question asked: ‘Is the gender identity you identify with the same as your sex registered at
birth?’. This question was the first of its kind. The Census 2021 includes the first official data on the size of the
trans population in England and Wales.

The ONS Census revealed that:

• 0.10% identify as a trans woman

• 0.10% identify as a trans man
• 0.10% identify as non-binary
• 0.04% identify as a gender other than male, female, or non-binary
• 0.24% identified that their gender differs from their sex registered at birth but provided no specific gender
identity

The Census data confirms that there are at least 262,000 trans and gender diverse people above the age of 16
living in England and Wales.
Dean Spade – Normal Life
Administrating Gender

Critical trans politics requires an analysis of how the administration of

gender norms impacts trans people’s lives and how administrative systems
in general are sites of production and implementation of racism,
xenophobia, sexism, transphobia, homophobia, and ableism under the
guise of neutrality.

• daily administration of programs, policies, and institutions (such as

homeless shelters, prisons, jails, foster care, juvenile punishment, public
benefits, immigration documentation, health insurance, Social Security,
driver licensing, and public bathrooms).
Equality Act 2010
• It is against the law to discriminate against anyone because of:

• age
• gender reassignment
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race including colour, nationality, ethnic or national origin
• religion or belief
• sex
• sexual orientation
https://www.legislation.gov.uk/ukpga/2010/15/contents
Equality Act 2010
Part 16, Schedule 3, Part 7: Separate and single services. Separate services for the sexes: paragraph 26
729. This paragraph contains exceptions to the general prohibition of sex discrimination which allow the
provision of separate services for men and women.

Examples
738. These exceptions would allow:
a cervical cancer screening service to be provided to women only, as only women need the service;
a fathers’ support group to be set up by a private nursery as there is insufficient attendance by men at the
parents’ group;
a domestic violence support unit to be set up by a local authority for women only but there is no men-only
unit because of insufficient demand;
separate male and female wards to be provided in a hospital;
separate male and female changing rooms to be provided in a department store;
a massage service to be provided to women only by a female massage therapist with her own business
operating in her clients’ homes because she would feel uncomfortable massaging men in that environment.

https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7
Equality Act 2010
Gender reassignment: paragraph 28
739.This paragraph contains an exception to the general prohibition of
gender reassignment discrimination in relation to the provision of
separate- and single-sex services. Such treatment by a provider has to be
objectively justified.

Example
A group counselling session is provided for female victims of sexual
assault. The organisers do not allow transsexual people to attend as they
judge that the clients who attend the group session are unlikely to do so if
a male-to-female transsexual person was also there. This would be lawful.

https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7
Dean Spade – Normal Life
• the law explicitly excludes trans people or that legal
systems create obstacles for the most enfranchised trans
people

• A hate crime bill that would bring enormous resources to

the criminal punishment system and do little or nothing to
prevent trans death.
 She met M on the internet through the social
R v McNally networking game “Habbo”; she used a male avatar
“S”. M believed that she was communicating with a
boy.

the Appellant was confronted by M's mother about

a case of really being a girl. The Appellant kept talking about
gender wanting a sex change and M said the Appellant had
lied to her for four years and all that time she had
identity been calling her S.

fraud She said that she did not know that “S” was a girl. She
considered herself heterosexual and had consented to
the sexual acts because she believed she was
engaging in them with a boy called S.
Transgender Prisoners Debate
Update on changes to transgender prisoner policy framework

• More than 90% of transgender women in prison are housed in men’s prisons, and
most do not request a move to a women’s prison. There is no obligation to move
transgender prisoners according to their wishes.
• Transgender women without a Gender Recognition Certificate – i.e. who are not
legally female – are initially sent to a male prison as a matter of course.
• As a result of the new policy, transgender women who are in future sentenced to
custody and
have male genitalia
OR
who have been convicted of sexual offences

will not serve their sentences in the general women’s estate unless there are
exceptional circumstances.
 Trans man loses UK legal battle to register as his child's
father
A transgender man has lost his legal battle to be registered
as his child’s father or parent in the UK after the supreme
court refused to consider his final appeal.

Beyond the Freddy McConnell, a 34-year-old freelance journalist who

binary works for the Guardian, gave birth in 2018 after suspending
his hormone treatment. He had hoped to challenge an
appeal court ruling this spring that motherhood is defined
as being pregnant and giving birth regardless of whether the
person who does so was considered a man or a woman in
law.

https://www.theguardian.com/society/2020/nov/16/trans-m
an-loses-uk-legal-battle-to-register-as-his-childs-father
Trans and Non-Binary experience of CJS
1. Gender-neutral Toilets Debate

2. Transgender Prisoners Debate

3. Violence Against Transgender People and Community

4. The case of puberty blockers

Trans day of Remembrance 20 November

https://www.eventbrite.com/e/coming-out-staying-out-westminster-lgbt-forum-tickets-726354805777
 Bibliography
MacKinnon, Catherine A. 1983. 'Feminism, Marxism, Method, and the State: Toward
Feminist Jurisprudence'. Signs 8(4): 635-658.
Butler, Judith. 1999(1990). Gender Trouble: Feminism and the Subversion of Identity. New
York and London: Routledge.
2021 Census Data:
https://www.gendergp.com/sexual-orientation-and-gender-identity-census-2021-england-a
nd-wales/

Gender Recognition Certificate:

https://www.gov.uk/apply-gender-recognition-certificate/who-can-apply
Transgender Prisoner Policy:
https://www.gov.uk/government/news/update-on-changes-to-transgender-prisoner-policy-f
ramework

Bent Bars: https://www.bentbarsproject.org/about

Outside Project: https://lgbtiqoutside.org/
 Assessment Two: Policy Consultation
• 2000 words
• Deadline is 4th January 2024 at 1pm
You have been asked to submit evidence to a government consultation
into a topic covered in the second part of our Gender, Crime and Justice
module. These submissions are used to inform future policy in the area
relating to the topic that you have chosen.
Topic Five
- Reform of the Gender Recognition Act 2004
https://www.gov.uk/government/consultations/reform-of-the-gender-re
cognition-act-2004
What is policy consultation?
A policy consultation essentially reviews an area of policy and in doing
so, calls for submissions from experts, NGO’s, Think Tanks, academics,
those with experience of a particular area (including lived experience).
It has been noted that “effective consultation allows the Government to
make informed decisions on matters of policy, to improve the delivery
of public services, and to improve the accountability of public bodies”
(HM Government 2008).
How to format evidence submission:
• Title of submission
• Two sentence description of who you are
• 3-4 bullet point summary of your submission
• Body of evidence answering the question. Use subheadings to break
this down
• Final paragraph – summary and solutions in bullet points
Topic Five: Reforming the Gender
Recognition Act
Trans people are able to receive legal recognition of their acquired
gender through a process set out in the Gender Recognition Act (GRA)
2004. Since the GRA came into force, only 4,910 people have legally
changed their gender. This is fewer than the number of trans respondents
to the Government’s LGBT survey, who were clear that they wanted legal
recognition but had not applied because they found the current process
too bureaucratic, expensive and intrusive. The government therefore
seeks your views on how to reform the legal recognition process[…]
This consultation simply asks how best government might make the
existing process under the Gender Recognition Act a better service for
those trans and non-binary people who wish to use it.
Topic Five: Reforming the Gender
Recognition Act
In order to narrow the focus on this consultation, we advise you to focus on the following questions:

• What are the existing barriers in legal recognition of trans and non-binary individuals?

• Are there any barriers in addressing trans and non-binary individual’s concerns in criminal justice system?

• What support is available for trans and non-binary domestic violence victims?

• What is being done to address the issue of trans gender prisoners?

• What could be done to lift the barriers in legal recognition of trans and non-binary individuals?

• What could be done to address the concerns of trans and non-binary individuals in relation to criminal
justice system?
Coming out kit by the Outside project