A criminal offence built on a category with no external test

[n] evidence items · [n] accounts · [Jurisdictions]

The issue

“Transgender identity” includes a person who considers themselves neither male nor female, or not solely male or female. That element is met by self-report alone. The definition also covers perceived identity, and a defendant’s mistake about the person’s identity is irrelevant (EN paras 17, 29).

Criminal law requires that people can know in advance what conduct is prohibited. If the protected category exists only in the person’s own perception, and can change, no parent, teacher or therapist can know which identity they are supposedly “changing.”

What it does

Clause: cl. 1(8); EN paras 17, 29, 38; draft impact assessment

“Transgender identity” includes identifying as neither male nor female, or not solely either, and the list is non-exhaustive. Sentencing Act 2020 s.66(6)(e) provides that references to being transgender “include” being transsexual or undergoing gender reassignment. Cl. 1(8) goes further in three ways:

It adds “but are not limited to”, removing any argument that the list is closed.
It adds, for the first time in this jurisdiction, a limb based on identifying as neither male nor female. This has no equivalent in s.66(6) or in Equality Act 2010 s.7.
It turns the category from a sentencing aggravation, applied by a judge, into an element of a criminal offence that a jury must find proved.

This departs from the Government’s stated intention to “use existing legislative definitions of sexual orientation and transgender identity” (draft impact assessment). The Explanatory Notes say only that cl. 1(8) “draws on” those definitions (para 38).

The definition can be met by self-report alone. Perceived identity counts, and a mistake about a person’s identity is irrelevant (EN paras 17, 29).

A category with no external test can work in anti-discrimination law, where the only question is whether someone was treated adversely because of it. It does not work once the law must decide whether conduct towards that category is criminal. Under cl. 1(2)(b)(ii), the complainant’s belief that they have a transgender identity is itself part of what the offence protects. That belief then becomes, as the Gay Men’s Network puts it, “the same untestable assertion as definition, evidence, and harm.”

Effects: No parent, teacher or therapist can know in advance which identity they are said to be changing, especially when a young person’s stated identity shifts. Detransitioners remain within the definition because they “ha[ve] undergone” gender reassignment.

At a minimum: Make the definition exhaustive. Require that the defendant intended to change an identity the individual held or was believed to hold, rather than one inferred after the event.

The clause

1 (8) The circumstances in which an individual has a transgender identity include (but are not limited to) where—
(a) the individual is undergoing, is proposing to undergo or has undergone a process of gender reassignment,
(b) the individual is transsexual,
(c) the individual identifies as neither male nor female or as not solely male or female.

Draft Bill, cl. 1(8) →

Exploratory Notes, paragraphs 17 & 29

What the Australian and New Zealand evidence shows

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