The United Nations Calling Out Transphobia and the Gender-Critical Movement in the UK

In May 2024, UN Women called out the gender-critical movement, which has a high profile in the UK. This was swiftly followed by the release of the final country report by the highly respected United Nations independent expert on sexual orientation and gender identity, Mr Victor Madrigal-Borloz, who visited the UK in the summer of 2023

UN Women made this statement:

Media and political campaigns have positioned the rights of LGBTIQ+ people as negotiable and debatable. Some try to frame the human rights of transgender people as being at odds with women’s rights, even asserting that trans women do not face gender-based discrimination or that they pose a threat to the rights, spaces, and safety of cisgender women.

While they vary by cultural context, these campaigns often portray the push for LGBTIQ+ people’s rights as merely a generational dispute, part of a so-called “culture war”, or in some cases, an imperialist agenda.

Many such narratives position trans and non-binary gender identities as new or Western concepts, ignoring the rich history of diverse sexual orientations, gender identities, gender expressions, and sex characteristics across cultures and within the global South in particular.

Falsely portraying the rights of LGBTIQ+ people, and particularly of trans people, as competing with women’s rights only widens divisions in the broader gender equality movement.

The statement went on to say:

Heightened scrutiny has made many donors more hesitant to support LGBTIQ+ causes. Meanwhile, private funding for reactionary movements is on the rise. A 2021 report by the Association for Women’s Rights in Development (AWID) found that funding for global anti-rights movements—primarily from a small number of wealthy donors—had increased by 50 per cent since 2012, with anti-gender movements receiving more than triple the funding as LGBTIQ+ movements between 2013 and 2017.

The feminist goals of intersectional justice and gender equality can only be achieved if all women and all LGBTIQ+ people are included as part of a broad, intersectional feminist movement rooted in the universality and indivisibility of human rights.

Feminist and women’s rights advocates and organizations, rather than stepping back, must push forward and act collectively to protect and promote LGBTIQ+ people’s equality and rights, with the understanding that all our human rights will either be upheld or rolled back together.

Mr Madrigal-Borloz’s (The Independent Expert) report was made public just days later. It was scathing in content—here are just a few extracts.

“The Gender Recognition Act 2004 enabled trans persons in the United Kingdom to have their acquired gender legally recognized without requiring surgery or hormone treatment. In September 2020, the Government released the long-awaited results of the consultation on the Act, which covers England and Wales, according to which the majority of the population supported the removal of medical requirements. While removing some administrative barriers and lowering costs, the Government nonetheless retained a system that requires a psychiatric diagnostic that no longer exists in the International Statistical Classification of Diseases and Related Health Problems of the World Health Organization, as well as proof of life in the affirmed gender for two years and evaluation by an external committee composed of legal and medical professionals”.

“In December 2022, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill with overwhelming support across political parties. In doing so, Scotland followed international good practice recommended by the vast majority of United Nations human rights bodies and the High Commissioner for Human Rights.

However, the Government of the United Kingdom made, in January 2023, an order under section 35 of the Scotland Act 1998 to prevent the Bill from being submitted for Royal Assent and enacted into law. The Government of Scotland contested that order in court, yet did not appeal the judgment upholding the order.

It has, however, not withdrawn the Bill, and still aims to work with the Government of the United Kingdom to implement it in the future. As noted above, the Independent Expert previously testified twice before the Scottish Parliament in June and December 2022 in support of the Bill. Although he takes no stance in relation to the legal dispute between the United Kingdom and Scottish Governments, which relates to matters that are primarily constitutional in nature, he laments that that action has de facto deprived trans persons in Scotland of the benefits of a simplified process by which to obtain Gender Recognition Certificates, and notes that it may engage the responsibility of the State under international human rights law.

The Independent Expert heard direct testimony from more than a dozen trans and gender-diverse persons who were waiting for the simplified process, some of them because – out of principle and a perception of their own dignity – they reject the pathologization of their lives.

The Independent Expert has repeatedly expressed concern at misinformation in political, social and legislative debates around legal recognition of gender identity. A system of self-identification is one that gives pre-eminence to the person’s sense of self, eliminating pathologizing approaches that erroneously claim that they are mentally ill or deeply inhumane requirements, such as sterilization, castration or divorce, and recognizing that their dignity is inextricably linked to the perception of self.12 Like any administrative decision, legal recognition of gender identity can be challenged in cases in which misuse of the system is suspected.

The Independent Expert was alarmed by a letter, dated 3 April 2023, from the Equality and Human Rights Commission to the Minister for Women and Equalities, by which it advised that defining the term “sex” as “biological sex” under the Equality Act would “bring greater legal clarity” to the implementation of the Act.

In contrast, the Scotland Committee of the Equality and Human Rights Commission had itself, on 28 February 2023, expressed concerns that it did “not consider sufficient evidence has been presented to justify amending the definition of legal sex in the [Equality Act] 2010 to biological sex at this time”.

The Committee cautioned that: “the Board should consider the risk to our perceived political independence if we are perceived to be aligning with Government in the absence of robust evidence. This is a potential existential risk that such a perception could risk the Commission’s existence going forward.”

Moreover, the Committee indicated that there had been no clear demonstration of a legal need or legitimate aim, even though “changing the definition of sex could diminish trans people’s rights; for example, legal colleagues advised that, if the proposed change were implemented, obtaining a Gender Recognition Certificate would no longer change a person’s sex in discrimination law. The Committee considered the Commission should be advancing the rights of minorities and not potentially diminishing rights for some groups.”

In a meeting with the Independent Expert on 4 May 2023, the Equality and Human Rights Commission confirmed that it had decided to issue that advice without itself having any definition of “biological sex”; the law of the United Kingdom provides no such definition either. The Commission nonetheless conceded, however, that, in the context of the letter, the intended meaning of the term “biological sex” was to define “women” as “women who are not trans”. As one Commissioner elaborated: “under the Equality Act … a trans woman who does have a [Gender Recognition Certificate] is a woman under the current case law. … if the Government decides to make the amendment, they don’t need to define biological sex, they can do it by way of exclusion of the [Gender Recognition Certificate].”

In the months following the visit, the Independent Expert has not received any information that would change his preliminary conclusions: through its advice, the Commission inappropriately offered the Government a formula to seek to exclude trans and gender-diverse persons from legal protections that they currently enjoy under the law of the United Kingdom – and that they will continue to enjoy under international human rights law.

The Independent Expert finds that advice to be flawed, not based on evidence, lacking legal need or legitimate aim, and deeply harmful to the physical and mental integrity of trans and gender-diverse persons and the LGBT community in general.

The Equality and Human Rights Commission is a national human rights institution, distinct and necessarily independent from government institutions. The Independent Expert recommends that national authorities and international experts take the measures necessary to examine its actions and independence, under the sphere of their competences. The independence of a national human rights institution is essential to effectively review and remedy any apparent breaches of the obligations of the State under international human rights law.

National authorities and civil society representatives in Wales, Northern Ireland and Scotland expressed concerns about where the Government of the United Kingdom stood on the protection of the human rights of LGBT persons. Following the unprecedented use of the section 35 order vis-à-vis Scotland, they also raised questions about the detrimental social ramifications of the high-profile blocking of the legal protections of the human rights of trans persons, and the instrumentalization of prejudice in the context of upcoming national elections.

Bolstered by strong legal protections of freedom of information in the United Kingdom, news media and social media are instruments for advocacy and visualizing violations of the human rights of LGBT persons, however, they were also spreading anti-trans discourse and stereotypical imagery of LGBT persons as dangerous, often employing homophobic and transphobic rhetoric.

Similarly, abusive rhetoric by politicians had trickled down and facilitated hateful speech in social media, which in turn seemed to have spurred rapid increases in the frequency of bias-motivated incidents of harassment, threats and violence, including hate crimes. Human rights defenders shared consistent accounts of experiencing substantial amounts of abuse both online and offline.

The report went on to make various recommendations, which included:

Based on these conclusions and the observations made in the present report, the Independent Expert makes the following recommendations to the Government of the United Kingdom and the devolved administrations in relation to their respective competences.

With regard to legal and policy frameworks, the Government of the United Kingdom and the devolved administrations should:

(a) Simplify the administrative process of legal recognition of gender identity, in accordance with internationally recognized good practices of legal recognition of gender identity based on self-determination by the applicant, without abusive requirements, including for non-binary persons and children;

(b) Halt and reject any efforts to remove or diminish existing human rights protections under the law and policy frameworks of the United Kingdom – including protection of refugees under the asylum system and protection of trans persons under the Equality Act 2010;

(c) Ensure the independence of the national human rights institutions of the United Kingdom from government influence in reviewing and remedying any apparent breaches of the State’s human rights obligations.

With regard to protection against bias-motivated violence and hate speech, the Government of the United Kingdom and the devolved administrations should:

(a) Ensure, through all necessary means, that homophobic, biphobic and transphobic hate crimes are effectively investigated, accurately categorized and prosecuted, and that those found guilty are punished with sentences commensurate with the gravity of the offence, whereas victims are provided with effective remedies;

(b) Carry out awareness-raising campaigns among parents, families and communities on sexual and gender diversity, aimed at reducing intra-family violence against LGBT persons and rejection by their family.

With regard to the right to education, the Government of the United Kingdom and the devolved administrations should:

(a) Strengthen comprehensive sexuality education materials – and adopt effective school policies and campaigns to disseminate those resources – to counter misinformation, discrimination and violence affecting students;

(b) Ensure the inclusion of sexual orientation and gender identity in all relevant educational materials, including teacher training and student textbooks, to promote human rights education and to reduce violence and discrimination in educational institutions.

With regard to the right to health, the Government of the United Kingdom and the devolved administrations should:

(a) Ensure that persons of diverse sexual orientations and gender identities have access to mental health support and treatment specific to their needs and delivered by trained medical providers;

(b) Take concrete actions to reduce the years-long waiting times and waiting lists for gender-affirming health care and associated services;

(c) Identify and address disparities in the physical, mental and sexual health of persons of diverse sexual orientations and gender identities, with a view to integrating their specific needs into public health policies – ensuring that all LGBT persons are equally included and enabled to access services, irrespective of age, race or other characteristics.

The United Nations is not alone.

The United Nations is not the only respected human rights organisation to call out the gender-critical movement, which has extensive links to hate groups, particularly in the United States. The Council of Europe is an international organisation with the goal of upholding human rights, democracy, and the rule of law in Europe. Founded in 1949 as a result of the World War, it has 46 member states and a population of approximately 675 million people. In September 2021, the Parliamentary Assembly passed a resolution saying this:

The Assembly condemns the highly prejudicial anti-gender, gender-critical and anti-trans narratives
which reduce the fight for the equality of LGBTI people to what these movements deliberately mis-characteriseas “gender ideology” or “LGBTI ideology”. Such narratives deny the very existence of LGBTI people, dehumanise them, and often falsely portray their rights as being in conflict with women’s and children’s rights, or societal and family values in general. All of these are deeply damaging to LGBTI people, while also harming women’s and children’s rights and social cohesion.

The Lemkin Institute is a multinational non-governmental human rights organization based in the United States. They said this in September 2022.

The gender critical movement simultaneously denies that transgender identity is real and seeks to eradicate it completely from society. Many gender critical ideologues identify themselves as feminists and believe themselves to be protecting women from men. They accuse transgender women of being stealth men and of transgender men of being self-hating women. The movement, a centerpiece of right wing ascendancy in the Western world, calls for discrimination against and harrassment of transgender individuals and the transgender community through laws and policies that criminalize trans identity and trans life.

Like many organisations, the gender critical movement’s aim may seem not just reasonable but admirable – who doesn’t want to protect women and children? Under close scrutiny, the reality is very different – they are a hate group who cloak their prejudice of trans people under the guise of “sex-based rights” and have funding from numerous international sources, with differing agendas, including destabilising society.