Unit 2 Sexual Orientation and Gender Identity

Unit 2: Sexual orientation and gender identity
W340-19J Law, society and culture
Unit 2: Sexual orientation and

gender identity
Page 2 of 66 12th September 2019

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2.1

Contents
 Introduction
 Learning outcomes
 Your workload plan
 1 A note about terminology
 2 Gays, lesbians and the law

 2.1 The missing event
 2.2 A current issue: conflicting rights
 3 Trans people and the law

 3.1 Timeline: trans people and the law
 3.3 A current issue: prisons
 4 People with intersex conditions and the law

 4.1 Timeline: people with intersex conditions and the
law
 4.3 A current issue: recognition as intersex
 5 International comparisons
 6 Conversation with an expert
 Summary
 Further resources

 References
 Acknowledgements

Introduction
This unit will examine legal approaches to people whose sexual
orientation and/or gender identity does not conform to that of the
majority. It differs from other units in this module in that it is
structured around three timelines, which cover:
1. gays and lesbians

2. trans people
3. people with intersex conditions.
This approach has been adopted to demonstrate how legal and

social/cultural attitudes have changed significantly over time, and,
in particular, to clearly demonstrate how much they have changed
in recent years. Legal approaches to sexual orientation and gender
identity cover a range of different areas of law including, but not
limited to, criminal law, employment law and family law.
In looking at legal approaches the focus will be on the approach of

English law (a term which generally covers the law applying in both
England and Wales), but reference will also be made at times to
the approach in other countries. Certain trends in the legal
approach of Western democracies can be discerned, but there are
also areas of difference; and when one considers legal
approaches across the globe the differences in approach can be
enormous.

Learning outcomes
After studying this unit you should be able to:
 have an understanding as to how the law has

developed in its treatment of gays, lesbians and those
who have historically been known as ‘transsexuals’,
but who are increasingly now referred to as ‘trans
people’
 have an understanding of how societal and cultural
attitudes to gays, lesbians and trans people have
changed over time
 have an understanding of how the law and society
have largely ignored people with intersex conditions
 have an appreciation of the way in which different
beliefs – including religious, moral and political
beliefs – can and do influence social attitudes and the
law
 have experience of weighing up conflicting arguments
and arriving at your own reasoned opinion.
Your workload plan

This table is designed to help you to plan your work on the unit. To
see how this fits in with your study of the module overall, see your
study planner.

As you will see, some activities direct you to precise sources, such
as articles, videos, ebooks etc. Where this is the case, sources are
indicated in the ‘Resources’ column. Other activities may be
designed for you to practice your independent research skills or to
reflect on a particular topic and therefore no resources will be
provided.
Unit 2 workload plan
Activity Title Estimated Resources Icon

time
1 Public and private 20 minutes None (reflection)
2 Changing attitudes 20 minutes Extract from Today
3 Changes 1994– 20 minutes None (reflection)

2000
4 Defining sexual 20 minutes None (reflection)
orientation
5 Homophobia in 40 minutes Extracts from regs 5(a) and 22
the workplace EE(SO)R 2003
6 Assessing 40 minutes ‘Viewpoints: gay marriage’
different (BBC News, 2013a)
viewpoints
7 The missing event 45 minutes None (reflection)
1
8 Gay rights versus 20 minutes ‘Gay couple in B&B damages
religious rights claim’
9 Access to 20 minutes ‘Transexuals win right to sex
treatment swap on the NHS’ (Steiner,
1999)
2
11 Trans prisoners 1 hour ‘Transgender woman Tara
Hudson moved to female prison’
(BBC News, 2015)
12 Man or woman 30 minutes None (reflection)

Poll

3
14 Lots of questions 45 minutes None (reflection)
Poll
Discussion: Lots of questions

1 A note about terminology

This is an area of law where the choice of terminology is fraught
with difficulty. In Unit 1 you considered the term ‘gender’ and
compared and contrasted its meaning with the term ‘sex’. As you
read this unit, consider whether the definitions of ‘sex’ and ‘gender’
that you encountered in Unit 1 can be applied when considering
the topics covered in this unit. Issues of appropriate terminology
are particularly prevalent in the subjects that are covered in this
unit. Terms have different meanings to different groups. What one
group may consider the appropriate term may be considered by
another group as being offensive.
Consider the extract in Box 1 by Thu-Huang Ha, entitled ‘How we

should talk about transgender issues’.
Box 1: How we should talk about transgender

issues
As gender issues become more public, it’s clear that the media will
play a crucial role in how trans people are treated – but sensitivity
starts with the individual, and a good first step is to be thoughtful
and precise about our language. Below, find tips and quotes
gathered from trans men and women and their allies about
positive, helpful ways to have that conversation. Though respectful
language is only part of the battle for equality and acceptance, it’s
a very good start.
Don’t conflate sex and gender.
This concept is fundamental to the trans community – and it’s

simultaneously obvious and difficult to grasp. Sex is based on
biology and assigned at birth, while gender is cultural and social,
based on how a person self-identifies. This is, for many, perhaps
the biggest obstacle to understanding by the cisgendered (that is,
people whose sex and gender align). Says LGBT activist and
TED speaker iO Tillett Wright ‘Male and female are the two pillars
upon which our society is built. Gender dictates everything from
what kind of relationship you get into to where you take a piss. And
if you upend that, it’s very threatening for people. It challenges the
system by which they live’.
Take the time to find out a trans person’s preferred pronoun.
Across the board, experts and activists say that this is vital. But
isn’t asking someone’s preferred pronoun at a party a bit
awkward? According to GLAAD Senior Media Strategist Tiq Milan,
most people appreciate it. He says, ‘People would respect [the
question] more than they would reject it, particularly if you have
people not on the binary’.
Never use: tranny, transvestite, he-she, she-he, it, sex swapped, sex
change. Do use: trans man or woman, male-to-female (m-t-f), or
female-to-male (f-t-m), transition.

‘Tranny’ is the same as ‘faggot’, says Milan. TED speaker Kate

Stone agrees: ‘The worst, to me, is when people shout out ‘tranny’
across the street. It sounds horrible’. Norman Spack, the first
doctor in North America to create an interdisciplinary program for
transgender adolescents in a pediatric academic medical center,
also sees ‘she-male’ as potentially damaging, because the phrase
is often used to refer to male sex workers who dress as women to
serve a specific fetish.
(Ha, 2014)
Interestingly, the extract on talking about transgender issues used

the term ‘transgender’. This term is itself contentious. Some trans
people view their gender as fixed, and that it is their sex that is in
question and their sex that they may change. Hence, they would
see the transition as being sex related, rather than gender related.
Nonetheless, the predominant view, as noted in the article by Thu-
Huang Ha (above) is that in general the terms ‘transgender’ and
‘trans people’ are preferable to ‘transsexual’. Accordingly, this unit
will tend to use the terms ‘transgender’, ‘trans people’ and ‘m-t-f’
and ‘f-t-m’. However, at times law reports, for example, will use the
term ‘transsexual’; for simplicity, where this terminology is adopted,
it will continue to be used in the discussion of these cases.
Apologies if at any point the approach causes any offence; none is
intended.

In Unit 1 you considered various definitions of gender. For

example, you considered Black’s Law Dictionary which defined
gender in the following terms:
Defined difference between men and women based on culturally

and socially constructed mores, politics and affairs. Time and
location gives rise to a variety of local definitions. Contrasts to
what is defined as the biological sex of a living creature.
(Black’s Law Dictionary, n.d.)
You also considered art 3(c) Istanbul Convention 2011, which

defined gender as:
the socially constructed roles, behaviours, activities and attributes

that a given society considers appropriate for men and women.
Do you think these definitions work for trans people?
This unit will also consider two other groups: homosexuals and
those who are intersex. Again, terminology can be contentious.
‘Homosexual’ as a term can be criticised as too focused on sex.
For some, the term ‘gay’, particularly in the context of ‘gay rights’,
encompasses gay and lesbian rights. For others the use of ‘gay’ to
include homosexual females detracts from, or even denies, these
people’s lesbian identity.

Achieving an approach that will satisfy everyone is not going to be

possible. Accordingly, in this unit the term ‘homosexual’ will tend to
be used when discussing people from both sexes who are sexually
attracted to members of their own sex. Alternatively, the phrase
‘gay and lesbian’ will be employed to denote the inclusion of
people of both sexes: ‘gay’ will tend to be used when referring
specifically to men who are sexually attracted to other men;
‘lesbian’ will tend to be used when specifically referring to women
who are sexually attracted to other women.
A wide range of terms could be employed to identify particular

intersex conditions; however, in general, the approach will be to
refer to ‘people with intersex conditions’. The desire of some
people with intersex conditions, however, to be viewed as
‘intersex’, challenges the binary divide that someone is either male
or female. This is the type of situation referred to by Tiq Milan in
the passage you have just read by Thu-Huang Ha.
The binary divide that people should only be viewed as male or

female is also challenged by people who view themselves as
‘gender fluid’, ‘genderqueer’ or ‘non-binary’. These terms are
generally adopted by people who view their gender identity as not
being fixed – for some these terms may be interchangeable, for
others they are different and whilst they may identify as one, they
would reject other terms. Those who see themselves as gender
fluid or genderqueer do not generally see themselves as ‘intersex’.
Intersex is commonly seen as having a medical basis, whereas

gender fluidity is more commonly linked to self-perception.
Similarly, trans people will not normally perceive themselves as
gender fluid; they are generally clear as to their gender/sex – the
problem, from their perspective, is that society fails to recognise
them in their ‘true’ sex.

2 Gays, lesbians and the law

How to use the timeline
The timeline relates to both legal developments and social and
cultural events. It is intended to show how the law and attitudes
have changed over time. The timeline is divided into two bands: an
upper (dark) band and a lower band. The lower band is further
divided into ‘legal’ and ‘social and cultural’ events. You will find
instructions for navigating the timeline at the start of the timeline
itself.
Dates marked with an asterisk have an additional activity for you to

undertake as you work through the timeline. Most of the activities
have been designed to assist you in preparing for TMA 01;
therefore, you are strongly recommended to attempt them. There
are six activities in this timeline; once you complete an activity,
there will be a link to bring you back to where you were in the
timeline.
At points as you work your way through the timeline you will be
given the opportunity to ‘find out more’. These are optional links. If
you follow them, you will find additional information which you may
find interesting, but which is not crucial to your understanding of
the topic being examined. You may therefore choose not to follow
these links.

It is recommended that the first time that you work through the
timeline you should move through the dates in chronological order
using the upper band to gain a historic perspective of how the law
and attitudes have changed. This is probably the best way to see
how legal and social approaches have changed over time.
Alternatively, you could, for example, use the lower band to follow
the legal developments and then follow social and cultural events.
Later, you can simply go back and click on a specific event in the
lower band that interests you or about which you would like to
remind yourself.
Interactive content is not available in this format.

2.1 The missing event

Producing a timeline about homosexual rights involves decisions
about what to include and what to exclude. As you worked your
way through the timeline, there may have been events which you
expected to see included, but which were ignored.
Activity 7: The missing event 1

You should allow yourself 45 minutes to complete this activity.
Choose one date/event which you consider should have been

included. The event could be a legal event or a social/cultural
event. In the Gender, Sexuality and the Law Tutorial, Part 1, you
will have the opportunity to discuss the event that you considered
should have been included with your tutor and your fellow
students. You should therefore write yourself some notes about
the event, so that you can explain it to your fellow students who
may not be familiar with it. You can use the box below to do this.
Press ‘submit’ to save your notes. (There is no comment
associated with this activity.) You should also be able to explain
why you thought the event was important.
Provide your answer...
2.2 A current issue: conflicting rights

A recurrent issue for the law is how to balance conflicting rights.
One of the main areas where this currently arises in relation to the
legal treatment of homosexuals is in relation to the balance

between their rights and the rights of those whose religious, and/or
other strongly held, beliefs potentially conflict with the rights of
homosexuals. A recent legal case which attracted considerable
media interest was the dispute between a Christian couple and a
gay couple who wanted to stay at the Christian couple’s bed and
breakfast establishment (B&B).
Activity 8: Gay rights versus religious rights

Watch the BBC News report ‘Gay couple win B&B damages claim’.
Video content is not available in this format.
View transcript - Uncaptioned interactive content
In the recording you heard from the gay couple, John Morgan and
Michael Black; you also heard the views of Mike Judge from the
Christian Institute.

Do you think that the court achieved the appropriate balance

between the rights of the couple and the rights of the B&B owners?
Vote using the poll below.
Give reasons for your answer.
In giving reasons consider whether:
1. religious beliefs should also be viewed as more

important than the right not to be discriminated
against, or
2. the right not to be discriminated against should always
be viewed as more important than religious beliefs, or
3. cases should be decided on their facts and that
sometimes where rights conflict (in cases such as this
one) respecting religious beliefs should be the main
concern of the law, while sometimes it should be
protecting people from discrimination.
If you chose option 3, you should explain what principles should be

adopted to decide which option should be followed.
View comment - Part

3 Trans people and the law

Read the article ‘A brief history of transgender issues’, by Professor
Stephen Whittle, which was published in the Guardian (2010). It will
provide some useful background before examining the legal and
social/cultural events in the timeline on trans people and the law.
3.1 Timeline: trans people and the law

Full instructions on using the timeline were given in Section 2.
Please refer back if you wish to check these instructions. Work
through the timeline chronologically in order to gain a feel for how
the legal, social and cultural landscape has changed. Dates
marked with an asterisk have an additional activity for you to
is one activity in this timeline; once you complete this, there will be
a link to bring you back to where you were in the timeline.


Producing a timeline about trans people and trans people’s rights
involves decisions about what to include and what to exclude. As
you worked your way through the timeline there may have been
events which you expected to see included, but which were
ignored.


For Activity 7 you were asked to choose one date/event which you
think should have been included in the timeline that looked at
important legal, social and cultural events linked to gays and
lesbians.
As you worked your way through the timeline on events linked to

trans people, you may have thought of events which should have
been included in this timeline. The event could be a legal event or
a social/cultural event. If you can identify an event that you think
should have been included relating to this timeline, think about
how you would explain it to fellow students who may not be
familiar with it, and why you think it is significant. At the tutorial you
are only going to be able to propose one event for inclusion, so if
you now have one for the gay and lesbian timeline and one for the
trans timeline you will have to decide which one you wish to
prioritise.
As explained earlier, in Gender, Sexuality and Law Tutorial, Part 1

you will have the opportunity to discuss the event that you think
should have been included with your tutor and your fellow
students. You should therefore write yourself some notes about
the event, so that you can explain it to your fellow students who
may not be familiar with it. You should also be able to explain why
you thought it was important.

3.3 A current issue: prisons

An issue that has been in the news has been the question of the
imprisonment of trans people. In 2015 there was a large petition
calling for Tara Hudson to be moved from the male prison (at
which she was originally sentenced to be detained) to a female
prison. As you will see, after you have followed the link below,
which will take you to the BBC News website, the approach of the
prison authorities is to move prisoners – whose acquired gender is
recognised under the Gender Reassignment Act 2004 (GRA 2004)
– to a prison for those of the acquired gender.
A problematic situation arises where prisoners have not acquired a

gender-recognition certificate under GRA 2004. Under GRA 2004
people seeking recognition of their acquired gender must first live
in that gender for a minimum of two years. This is likely to be
problematic, as trans people may face rejection by, or
incomprehension from, family and friends. They may also receive
less than sympathetic responses from medical professionals –
many of whom will have little experience of dealing with trans
people. They may also find that employers and work colleagues
are not sympathetic and/or they may be fearful of the responses
they receive. They may also meet hostility from strangers on the
street and in other public places. As a result, it is well documented
that many trans people find this period particularly difficult. An
unfortunate outcome of this is that rates of suicide and depression
among trans people are high, as are rates of offending. Therefore,

while, numerically, the number of trans people may be small, the
number coming into contact with the criminal justice system is
significant.
Image: Gareth Copely/PA Archive/Press Association

Images/Universal Images Group
Figure 1: Prison showing cells and walkways
As you read the BBC News report, consider whether the approach
of the prison authorities outlined achieves the right outcomes. You
should bear in mind that there will potentially be both m-t-f and f-t-
m trans people in this situation, and consider the likely attitudes
and sensibilities of other inmates with whom trans people may
have to be housed.
Activity 11: Trans prisoners

You should allow yourself 1 hour to complete this activity.

Read the BBC News report ‘Transgender woman Tara Hudson moved
to female prison’ (BBC News, 2015) and assess whether the prison
guidelines are achieving the best approach. Record your thoughts
in the box below.
There has been much discussion of this issue in the media. From
the ‘News sources’ page of the OU Library website, access Nexis
UK and search for ‘Tara Hudson’. If you are unsure how to do this,
refer to ‘Searching online newspapers’.
You should find a significant number of mentions. Select one

which looks at the issues surrounding the imprisonment of trans
people and assess how the stance adopted in the newspaper
article differs from your own. Consider whether, in the light of what
you have just read, you would like to reformulate your view. If you
feel that your initial view does not require refinement, can you
explain why you think your initial view remains appropriate?
View comment - Part

4 People with intersex conditions and

the law
Read the intersex fact sheet produced by the United Nations Office
of the High Commissioner for Human Rights (OHCHR, n.d.).
Numbers
The OHCHR fact sheet estimates that the number of people with
intersex conditions may be as high as 1.7 per cent of the
population. The UK population was estimated by the Office for
National Statistics (ONS) to be 64.6 million in mid 2014. Applying
the 1.7 per cent estimate, this would mean that almost 1.1 million
of the UK population could have intersex conditions. Later, in the
section on current issues for those with intersex conditions, you
will hear and see the estimate of 1 in 2000 being born intersex –
this is the same as the lowest estimated percentage given in
the OHCHR fact sheet, above. This estimate would indicate that
assuming the UK’s population is 64.6 million, approximately
32,300 would be intersex.
Estimates as to the percentage within the population who are

homosexual vary widely. The ONS’ 2013 Integrated Household
Survey found that 1.1 per cent of the population identified
themselves as gay or lesbian; a further 0.4 per cent identified
themselves as bisexual (ONS, 2013, s. 3). This would suggest that

the number of people with intersex conditions may be greater (1.7

per cent) than the combined number of homosexuals and
bisexuals (1.5 per cent). However, other estimates suggest that
the percentage of homosexuals making up the population is much
higher. For example, a Guardian article, ‘Gay Britain: what do the
statistics say?’, (Chalabi, 2013) cited UK Treasury estimates of the
percentage of gays and lesbians making up the population as
being around 6 per cent – a figure in line with Stonewall estimates
of 5 to 7 per cent. So, while it is possible that the number of
people with intersex conditions exceeds the number of people who
are homosexual, this is probably unlikely. According to the
OHCHR fact sheet, the lower-end estimate as to the number of
people born with intersex conditions cited above was 1 in 2000
(i.e. 0.05 per cent). This figure is far lower than any of the
estimates as to the percentage of the population who are
homosexual.
The number of trans people in the UK is equally unclear. In 2003

figures from the Inland Revenue and Department for Work and
Pensions indicated that there were about 4000 trans people in the
UK – figures broadly in line with estimates of about 5000 from the
DVLA and HM Passport Office (Reed et al., 2009, p. 14). By
December 2014, 3779 people had been registered in their
acquired gender under the Gender Recognition Act 2004 (UK
Trans Info, n.d.).

These figures for trans people (i.e. about 3000 to 5000 people in
the UK) are lower than the estimated number of homosexuals
(possibly around 5 to 7 per cent of the population), and far lower
than the top-end estimate of the number with intersex conditions
(i.e. up to 1.7 per cent of the population). Taking the lowest
estimate quoted by the OHCHR fact sheet as to the prevalence of
intersex conditions (i.e. 0.05 per cent, indicating about 32,300
people), the number of trans people in the UK could be fewer than
the minimum number estimated for those with intersex
conditions. However, the estimate of the number of trans people
may in fact be significantly lower than the actual number, as many
people may view themselves as trans but either do not intend to or
are yet to seek official recognition in what they consider to be their
true sex/gender.
Number of court cases

Whether you take the upper or lower estimate, you would expect
that the UK courts would have been called upon to adjudicate on a
number of intersex-related cases. This is particularly likely given
the concerns expressed in the UN fact sheet, referred to above,
about the plight of those with intersex conditions. Certainly, if you
compare the number of people with intersex conditions with the
number of trans people, you would anticipate that the number of
cases brought by trans people to be much lower. However, this is
not the case.
Optional further reading on numbers

The following article provides a detailed examination of the
research on the numbers of people with intersex conditions:
 Blackless, M., Charuvastra, A., Derryck, A., Fausto-

Sterling, A., Lauzanne, K. and Lee, E. (2000) ‘How
sexually dimorphic are we? Review and
synthesis’, American Journal of Human Biology, vol. 12,
no. 2, pp. 151–66.
If you would like to know more about the range of estimates as to

the number of homosexuals in the population, you could read ‘Gay
Britain: what do the statistics say?’ (Chalabi, 2013), referred to above.
4.1 Timeline: people with intersex

conditions and the law
Full instructions on using the timeline were given in Section 2.
Please refer back if you wish to check these instructions. Work
through the timeline chronologically in order to gain a feel for how
the legal, social and cultural landscape has changed. Dates
marked with an asterisk have an additional activity for you to
is one activity in this timeline; once you complete this, there will be
a link to bring you back to where you were in the timeline.

Producing a timeline about people with intersex conditions is in
some ways easier and in some ways more difficult than it is to
produce comparable timelines for trans people and for
homosexuals. It is easier because there are fewer problems in
relation to deciding what to leave out; it is more difficult because
there are challenges in finding material to include – especially
when trying to focus on material relevant to the UK. However, as
you worked your way through the timeline there may have been
events which you expected to see included, but which had not
been.

For Activities 7 and 10 you were asked to choose one date/event

which you consider should have been included in the timeline
relevant to each. You should by now have decided on one event
which you wish to propose for inclusion at your tutorial.
You should now have worked your way through the timeline on

events linked to people with intersex conditions. You may have
thought of events which should have been included in this timeline.
Of the three timelines, it is arguably the timeline which is most in
need of having additional events incorporated. As with the
previous two timelines, the event could be a legal event or a
social/cultural event.
Identify an event that you think should have been included relating
to this timeline, think about how you would explain it to your tutor
and fellow students, who may not be familiar with the event, and
why you think it is significant. At the tutorial you are only going to
be able to propose one event for inclusion, so you are going to
have to decide which one you wish to prioritise. You should

therefore write yourself some notes about the event. You should

also be able to explain why you thought it was important.
4.3 A current issue: recognition as

intersex
In W v W [2000] 3 FCR 748 the respondent viewed herself, and
wanted others to view her, as female. However, not all people
want to be viewed as either male or female. Some individuals with
intersex conditions wish to be viewed as intersex. Should they be
allowed to choose this designation? Should forms that require a
person to register their sex provide for registration as intersex?
Listen to the item ‘Intersex’ from the BBC World Service

programme Healthcheck (2013), in which Sarah Graham talks to
Claudia Hammond about her experience of growing up intersex
and the changes that she would like to see.
Audio content is not available in this format.
‘Intersex’ (Healthcheck). Duration 7 minutes 28 seconds
View transcript - ‘Intersex’ (Healthcheck). Duration 7 minutes 28

seconds
The approach that should be adopted towards children who are

born with intersex characteristics is problematic.
 Should they have surgery so that they become, at

least in terms of appearance, either male or female?
 Should they be allowed to grow up as intersex and
decide later whether to continue to be intersex or
choose, as an adult, to have surgery so that they can
present as either male or female?
 Should the state recognise individuals as intersex?
One country which now allows registration as intersex
is Germany.
Video content is not available in this format.
Germany allows ‘indeterminate’ gender at birth. Duration 2 minutes 16

seconds
View transcript - Germany allows ‘indeterminate’ gender at birth.

Duration 2 minutes 16 seconds
If you want to know more about this German approach, see

‘Germany allows “indeterminate” gender at birth’ (BBC News, 2013b),
from which the above video extract was taken and which provides

more information about, and discussion of, the German approach,

as well as noting five other countries that have given some
recognition to intersex status, namely:
 Nepal – census, since 2007

 India – electoral roll, since 2009
 Australia and Bangladesh – passport applications,
since 2011
 New Zealand – passport applications, since 2012.
Activity 14: Lots of questions
A number of legal issues are raised in relation to people with

intersex conditions. Consider the following questions and select
which of the three options best accords with your view. After you
have completed the polling and had the opportunity to consider the
responses of fellow respondents, you will have the opportunity to
post your thoughts (word limit 300 words) and add responses to
the posts made by others.
Poll: Children with intersex conditions

Poll: Adults with intersex conditions

Poll: Surgery
Discussion of poll results

In the discussion space below, post your thoughts (in no more than
300 words) either on one or more of the issues raised, or your
thoughts about the poll results. You may choose to explain your
view on one or more of the questions, or if you are surprised by
some of the poll findings you may want to register your surprise
and explain why you were surprised. The important aspect of your
posting is that it should be reasoned and thoughtful. Remember all
the topics looked at in this unit, including this one, are potentially
controversial; therefore while you should make your views clear,
you should try to ensure that you avoid causing offence.
Once you have made an initial post, take time to read at least
some of the thoughts which have been posted by others. In doing
so, do not just think about whether you agree or disagree with the
views expressed, but also think about the way in which they have
expressed their views. You can learn from others how best to
make an argument concisely and clearly. If you wish to do so, you
can respond to the posts of other students, but remember the
importance of respecting others’ right to hold opinions with which
you may profoundly disagree, and the importance of avoiding

offence. Each response should be limited to no more than 50

words. You should not respond to any posting more than once, so
consider your responses carefully before making them.
Discussion of poll results

This interactive item is not available in this format.
View interactive content

5 International comparisons
As you have worked your way through this unit you will have seen
some references to the experience of homosexuals, trans people
and those with intersex conditions in other countries.
In the last section you saw that there is some recognition of

intersex as a separate gender category in Nepal, India,
Bangladesh, Australia and Germany. New Zealand and Pakistan
could be added to this list. However, this leaves the UK,
together with the vast majority of countries, as not recognising
intersex as a third gender for legal purposes.
Even where intersex is recognised as a third category the full legal

implications – for example, in relation to marriage – are not clear.
 Can an intersex person who is recognised as intersex

legally marry? If so, can an intersex person marry (a)
a man, (b) a woman or (c) someone who is also
intersex?
 Is being recognised as intersex a matter of personal
choice, medical examination or something else?
 Should the UK be one of the first countries to
recognise intersex as a separate legal category?
The UK was one of the last European countries to allow trans

people to be recognised in the gender with which they identify.
While the UK may have been slow to act, the Gender Recognition
Act 2004 has created one of the most progressive legal regimes in
terms of its preparedness to recognise people in their preferred
gender without requiring them to undergo surgery or hormone
replacement therapy.
Global approaches to homosexuality are probably the area where

differences in legal treatment are most marked.
Th BBC News articles, ‘Where is it illegal to be gay?’ (2014) and ‘Gay

marriage around the world’ (2013c) highlight the stark differences
in where it is illegal to be gay or lesbian, and where gay marriage
is permitted. In relation to the UK, however, it is worth
remembering (from the gay and lesbian timeline) that sex between
men was illegal in England and Wales until 1967, the age of
consent was not equalised until 2000, and the first gay marriages
did not take place until 2014.

6 Conversation with an expert

Peter Tatchell is one of the leading gay-rights activists. He was
involved in the Gay Liberation Front in the early 1970s and was
involved in organising London’s first Gay Pride march in 1972. In
the 1990s he was involved with the direct action pressure group
Outrage! More recently, his campaigns have been organised
through the Peter Tatchell Foundation; they have focused not just
on LGBT rights in the UK, but have had an increasingly global
focus.
In this interview, undertaken for W340, Peter reflects on the

changes in legal approaches to homosexuality and the social and
cultural changes which have taken place alongside these legal
reforms.
Audio content is not available in this format.
Paul Catley talks to Peter Tatchell. Duration 17 minutes 41 seconds
View transcript - Paul Catley talks to Peter Tatchell. Duration 17 minutes

41 seconds

Summary
There have been significant changes in the law relating to
homosexuality since 1967. Within a 50-year period we have
moved from a situation where sex between men was illegal, to a
situation where gays and lesbians can marry, can adopt children,
and are protected from discrimination in the workplace and in the
provision of goods and services. In parallel with these legal
changes, social and cultural attitudes have also changed.
There have been similarly significant changes in the law’s

approach to trans people. They are now legally protected from
discrimination, and since the Gender Recognition Act 2004 came
into force they can be recognised in what the Act terms their
‘acquired gender’. Likewise trans people have become more
accepted in society and in culture.
Legal issues relating to people with intersex conditions have been

less prominent. Such people have remained socially and culturally
largely invisible. A few countries are now recognising intersex as a
third sex, but the UK has not, as yet, been part of these moves.
Throughout, this unit has looked at alternative views and

encouraged you to consider different opinions, weigh them up and
arrive at your own reasoned conclusions. These skills will be
tested in TMA 01.

You should now be able to:
 have an understanding as to how the law has

developed in its treatment of gays, lesbians and those
who have historically been known as transsexuals, but
who are increasingly now referred to as trans people
 have an understanding of how societal and cultural
attitudes to gays, lesbians and trans people have
changed over time
 have an understanding of how the law and society
have largely ignored people with intersex conditions
 have an appreciation of the way in which different
beliefs, including religious, moral and political beliefs,
can and do influence social attitudes and the law
 have experience of weighing up conflicting arguments
and arriving at your own reasoned opinion.
If you are unsure about any of these, go back and reread the
relevant section(s) of this unit.
We’ll now move on to look at women and the criminal justice system.

Further resources
If you would like to read more about the issues discussed in this
unit, you may find the following resources of interest. Note that this
additional reading is entirely optional and is not required for
assessment purposes.
1. Press for Change website – Press for Change is one of,

if not the, leading trans-rights organisations. They
describe themselves as ‘the UK’s leading experts in
Transgender law’; their claim is not overblown. The
website is a very good source of information on the
legal position of trans people and the legal issues that
still affect them.
2. Advancing Transgender Equality: A Plan for Action is a
20-page government plan published in 2011. It sets
out the then Coalition Government’s plans to support
and protect the rights of trans people. It is the most
recent such statement from the UK government.
3. Stonewall website – Stonewall is probably the leading
campaign organisation for LGBT rights. Its extensive
website is easily searchable.
4. Wikipedia – you may be surprised to see Wikipedia
included as a suggested resource. It is commonly
viewed as a dubious source of information with scare

stories of pages that have been deliberately altered to

be misleading. A weakness of Wikipedia is that you do
not know who made (or altered) the entries; therefore
you don’t know if they had any particular knowledge of
the subject on which they were writing or whether they
had a particular axe to grind which therefore made
their entry unreliable. However, Wikipedia does,
generally, provide web links to sources, so you can
test whether what is written on Wikipedia is supported
by the source. In this particular case I wanted to
provide a link to a source that was opposed to LGBT
rights. In reality there are many groups who oppose
LGBT rights – sometimes on religious grounds,
sometimes on other values/ideologies. The linked
Wikipedia page, at the time when I looked at it,
provided information from a number of the groups
which oppose LGBT rights. It gave information about
their opposition and set it in a historic and
international context. While I would be wary of
accepting information on Wikipedia unquestioningly, it
can be a good early source on a quest to discover
more about a subject.
5. The Fundamental Rights Situation for Intersex People is a
10-page EU document, published in 2015, which
looks at intersex rights across the EU. It also has a

useful bibliography that identifies further sources of

information.
6. Google Scholar is a much better way to find academic
articles than simply searching using Google. There is
also guidance on how to search which will help you to
get the most out of your searches. Often there will be
more focused search engines, which will enable you
to limit your search to a specific type of article. For
example, if you want only law articles, you may do
better searching for journal articles using the
HeinOnline or Lexis databases, available through the
library. However, for general searches Google Scholar
can be a good way to identify useful sources. Like
HeinOnline, it also provides information about how
often and where the article you are considering has
been cited – which can be a good way to find further
relevant material, as well as to find out if the views
expressed in the article are, or are not, generally
accepted.

References
Books
Black’s Law Dictionary (n.d.) 2nd edn [Online]. Available at
http://thelawdictionary.org/ (Accessed 24 August 2016).
Cases
W v W [2000] 3 FCR 748
International
Dutee Chand v Athletics Federation of India (AFI) and the International
Association of Athletics Federations (IAAF) (CAS 2014/A/3759), 24
July 2015, Court of Arbitration for Sport
Legislation
Employment Equality (Sexual Orientation) Regulations 2003
Gender Recognition Act 2004
Sexual Offences Act 1967
International
Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence 2011, CETS no.
210 (Istanbul Convention)
Other sources
BBC News (2013a) ‘Viewpoints: Gay marriage’, 5 February
[Online]. Available at www.bbc.co.uk/news/uk-21339877
(Accessed 24 August 2016).
BBC News (2013b) ‘Germany allows “intermediate” gender at

birth’, 1 November [Online]. Available at
www.bbc.co.uk/news/world-europe-24767225 (Accessed 25
August 2016).
BBC News (2013c) ‘Gay marriage around the world’, 23 April

[Online]. Available at www.bbc.co.uk/news/world-21321731
BBC News (2014) ‘Where is it illegal to be gay?’, 10 February

[Online]. Available at www.bbc.co.uk/news/world-25927595
BBC News (2015) ‘Transgender woman Tara Hudson moved to

female prison’, 30 October [Online]. Available at
www.bbc.co.uk/news/uk-england-34675778 (Accessed 24 August
2016).
Chalabi, M. (2013) ‘Gay Britain: what do the statistics

say?’, Guardian, 30 October [Online]. Available at
www.theguardian.com/politics/reality-check/2013/oct/03/gay-
britain-what-do-statistics-say (Accessed 25 August 2016).
Ha, T-H. (2014) ‘How should we talk about transgender issues?’,

TED, 31 March [Online]. Available at http://ideas.ted.com/how-
should-we-talk-about-transgender-issues/ (Accessed 24 August
2016).
Healthcheck (2013) ‘Intersex’, BBC World Service, 11 November

[Online]. Available at www.bbc.co.uk/programmes/p01kkkpp
Office for National Statistics (ONS) (2013) Integrated Household

Survey (Experimental statistics): January 2012 to December 2012, 3
October [Online]. Available at
www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/s
exuality/bulletins/integratedhouseholdsurvey/2013-10-03#sexual-
identity (Accessed 12 September 2016).
Reed, B., Rhodes, S., Schofield, P. and Wylie, K. (2009) ‘Gender

variance in the UK: prevalence, incidence, growth and geographic
distribution’, Gender Identity Research and Education Society, June
[Online]. Available
at www.gires.org.uk/assets/Medpro-Assets/GenderVarianceUK-
report.pdf (Accessed 13 September 2016).
Steiner, S. (1999) ‘Transexuals win right to sex swap on NHS’, The

Times, 30 July.

UK Trans Info (n.d.) ‘Gender recognition statistics’ [Online].

Available at http://uktrans.info/grc-stats (Accessed 13 September
2016).
United Nations Office of the High Commissioner for Human Rights

(OHCHR) (n.d.) Fact Sheet: Intersex [Online]. Available
at https://unfe.org/system/unfe-65-
Intersex_Factsheet_ENGLISH.pdf (Accessed 25 August 2016).
Whittle, S. (2010) ‘A brief history of transgender issues’, Guardian,

2 June [Online]. Available at
www.theguardian.com/lifeandstyle/2010/jun/02/brief-history-
transgender-issues (Accessed 24 August 2016).
Yogyakarta Principles in Action (2010) An Activist’s Guide to the

Yogyakarta Principles [Online]. Available at
www.ypinaction.org/files/02/85/Activists_Guide_English_nov_14_2
010.pdf (Accessed 26 August 2016).

Acknowledgements
This unit was authored by Paul Catley.
Grateful acknowledgement is made to the following sources:
Video and audio

Posthumous apology to Alan Turing (Dr Sue Black of Saving
Bletchley Park): BBC
AIDS public information film: © Crown Copyright. Reproduced

under OGL
Jack Straw on the equal age of consent: BBC
Civil partnerships: Ten years on: BBC
Gay Couple win B&B damages claim: BBC
Semenya told to take gender test: BBC
Health Check: ‘Intersex’: BBC
Germany allows ‘indeterminate’ gender at birth: BBC
Extract from Today (Why should homosexuality be

decriminalised?): BBC

Every effort has been made to contact copyright holders. If any

have been inadvertently overlooked the publishers will be pleased
to make the necessary arrangements at the first opportunity.

Activity 8: Gay rights versus

religious rights
Part
Comment
Constructing persuasive arguments is a skill needed not just by
lawyers, but in almost any walk of life. Reread your answer – do
you think it would persuade someone with an open mind who was
persuaded by well-reasoned argument. If you do not think that it
would persuade such a person then return to the task and make
your argument more persuasive. If you have a friend or relative
who might be interested, show that person the video and then
show them your written explanation to see if they are persuaded
by your reasoning.
Back to - Part

Activity 11: Trans prisoners

Part
Comment
It is important to be able to reflect on your own viewpoint. This
does not mean changing your viewpoint in the light of what you
read, but it does mean thinking about why you hold the view you
hold, whether the new information you have read challenges or
supports your view, and if it challenges your view, you should then
be open to reassess it. This may lead to you changing your view.
However, it may be that the alternative viewpoint that you have
now encountered appears to you to be unpersuasive or is a
viewpoint that you have already considered and rejected. If this is
the case, you should still be able to reflect on why you find the
view unpersuasive. Is your view based on evidence or emotion? Is
it based on your beliefs? Can you articulate those views in a way
which could be persuasive to others?
Back to - Part

Uncaptioned interactive content

Transcript
JEREMY COOKE:
It's a family home. It's also a bed and breakfast run by committed Christian Susanne
Wilkinson. In March 2010, a gay couple had booked a double room, paid a deposit,
but when they got here, they were refused accommodation.
John Morgan and Michael Black sued for damages. And today, the judge's ruling:
they've won.
JOHN MORGAN:
Whilst it was humiliating, disappointing, awkward, and all those things, we're not,
say, a 19- and 20-year-old couple who might find themselves absolutely floored by it
and be hurt, very hurt. So I think it's important that they know that they are right.
JEREMY COOKE:
In her defence, Susanne Wilkinson's lawyers said that she considered that providing a
bed to a couple not in a heterosexual marriage was a sin. And, they said, her decision,
in these circumstances, was a manifestation of her religious beliefs.
The B&B's website features the Zurich Room, the double booked by Michael Black
and John Morgan. The blurb promises a warm and friendly welcome for all. But the
business has been ordered to pay 3600 pounds for discriminating against a gay couple.
It's a blow for the Christian groups which have actively supported the B&B owners.
MIKE JUDGE:
I think we would like to see from the courts a bit more of a balancing exercise.
Susanne Wilkinson was running her bed and breakfast from her family home. Now,
yes, it's a business, but it's also her personal home. And she should be allowed to live
according to her own values under her own roof.
JEREMY COOKE:
But the message from the courts is increasingly clear. There is zero tolerance for any
discrimination based on sexual orientation. Jeremy Cooke, BBC News, Berkshire.
Back to - Uncaptioned interactive content

‘Intersex’ (Healthcheck). Duration 7

minutes 28 seconds
Transcript
INTERVIEWER:
You might have heard the news that Germany has become the first country in Europe
to allow newborn babies to be registered as neither a girl nor a boy in the rare cases
where sex can't be determined by looking at a newborn baby's physical characteristics.
Australia, New Zealand, and Bangladesh all allow this third gender, X, or 'other', on
passports. One in 2000 babies are born with characteristics of both sexes. And even
genetic testing doesn't necessarily make things any clearer. In a moment, we'll speak
to an intersex woman about the psychological difficulties of coping in a world where
we're heavily defined by gender. But before that, here's Polly Carmichael, consultant
clinical psychologist at London's Great Ormond Street Hospital.
POLLY CARMICHAEL:
Many people think that physical sex is defined clearly in two categories, and either
you're a girl or you're a boy. And perhaps also that this is determined before you are
born in one step. And in actual fact, there are a series of steps. So there's your sex
chromosomes, there's your gonadal status -- that is, the organs that differentiate into
ovaries or testes under the influence of hormones. And then there's also your physical
appearance. And so in the course of sexual differentiation before a baby is born, there
are a number of ways in which things can go differently. And, I guess, in terms of the
babies we see here, it would usually be a referral because there was some ambiguity
in terms of their physical appearance at birth.
INTERVIEWER:
At Great Ormond Street Hospital today, staff advised parents not to rush into a
decision too quickly about whether to bring the baby up as a boy or a girl. For some,
years of surgery can follow, as can secrecy. Sara Graham is an intersex woman and a
counsellor. She was 25 years old when she discovered what her family and doctors
had known for a long time.
SARAH GRAHAM:
I came from a generation of people who were lied to by the medical profession. I was
diagnosed when I was seven years old as having a problem. And that's when I started
seeing a gynaecologist. And my parents and I were told that I had a very, very rare
condition which meant if I didn't have an operation when I was seven, I would get
cancer when I was a teenager and probably die. So, of course, we went along and I
had this operation, actually when I was eight years old. I was told that I was having
my ovaries removed.

And that became the start of a very long journey of seeing this gynaecologist, Sir John
Professor Dewhurst, every six months, and an army of medical students that were in
tow, being examined as this very special, rare case. And that went on through my
teens, as I began hormone replacement therapy at 12 and had other issues that had to
be dealt with along the way. So that was the story I was given. And then it wasn't until
I was in my 20s that finally a gynaecologist broke ranks and admitted that the story
had inconsistencies and told me the truth of my diagnosis.
INTERVIEWER:
Would it have made a difference for you if they'd been open with you from the start?
SARAH GRAHAM:
I think it's absolutely vital that the medical profession is open and transparent with
intersex people, because the diagnosis is difficult and challenging in itself, of course,
for the child and parents. But being lied to by my doctors -- you know, I really
respected and admired Sir John Professor Dewhurst, my gynaecologist. He was a
lovely man. And yet, when I found out years later that he'd lied to me and to my
mother, who was a nurse, interestingly, I felt really betrayed and I felt, also, angry that
I'd had an operation which actually wasn't really necessary. I could have gone on to
produce hormones naturally, and they could have assessed in my teens or later
whether I needed to have the gonadectomy. It wasn't necessary except for to de-
intersex me and to make culture feel safer.
INTERVIEWER:
So with this plan in Germany to allow people to put indeterminate gender on their
birth certificate, so you could have male or female or X as this other gender.
SARAH GRAHAM:
Yeah, X people, I quite like that.
INTERVIEWER:
What sort of difference would that have made for you? I mean, would you have
wanted to not be brought up a girl? Would you like to be other?
SARAH GRAHAM:
It's interesting, because I certainly am happy with my gender of female now, I'm a
woman. But at the same time, that's not the whole story. I am also an intersex person.
I've always felt the box of F was too small for me. And I think it's really important
that we have that third space, because intersex people do really challenge this
hegemony of this binary polarity. It's not true. Nature loves diversity. Nature creates a
whole range of sexes, as there are a whole range of genders and sexualities. And this
is medically enforcing an untruth. Intersex people exist and they need to be allowed to
exist as they are and make decisions for themselves. What gives doctors the right to
decide what gender a young person should be? That young person needs to grow and
find themselves and decide whether they want to be one of those two genders, or
whether they want to be a unique and special individual.
INTERVIEWER:
So what would you do with a child when they are just starting school, though? Do
they need to be a boy or a girl? Or could they be other, would schools be able to cope
with that? Would they get bullied by other kids?
SARAH GRAHAM:
Of course this is a very difficult process at the moment, because we live in such a
rigid society based on these binary boxes, you know. And so this is a challenging
diagnosis for parents. But I really do believe that parents, if given the right support,
can allow a young person to be intersex. I really hope that in my lifetime we will see
that it's OK for some young people to choose to be intersex.
INTERVIEWER:
Are there things you'd like to see doctors doing differently?
SARAH GRAHAM:
We have some really good progressive doctors in this country, and we are moving to a
situation where surgery isn't so automatic as it was. But I think there's a lot more to be
done around the world. I think it's a disgrace that in the modern world, intersex
children are being routinely operated on. Those children should be allowed to grow up
and make a decision for themselves as to whether they want to have surgery. Because
often that surgery is damaging to sexual responsiveness, it can be damaging to
fertility, and it's just about making society feel better. It's not actually about what's in
the best interests of the child. Operations on children are very traumatic. Children
haven't got the language or the awareness to be able to deal with them. So I would
really caution against any kind of surgery until the young person is able to
emotionally deal with it and make informed decisions.
INTERVIEWER:
Sarah Graham. And with me is Sarah Boseley. Now, in many places, the secrecy is
decreasing. But of course, the first thing everyone wants to know when a baby is born
is, is it a boy or is it a girl? So it must be really hard for parents who can't really
answer that question.
SARAH BOSELEY:
Yes, I should think it's really difficult. And some parents so much want to know, of
course, that they find out from scans before the baby is even born. So if they're
expecting a girl and this isn't a girl, or it might be a girl, then that's also a difficult
situation. So I think the whole mindset is hardened. And then when you get to school,
you get boys' toilets and girls' toilets. You know, society isn't yet structured, is it, to
cope with this, or to make decisions very easy for people?
INTERVIEWER:
It's interesting that Sarah talked about the whole idea of hoping to see in her lifetime
that we could have societies where there's a third gender. But there's a long way to go
for that, isn't there?
SARAH BOSELEY:
There's an awful long way. We still think in terms of couples and in marriages. And
although more and more gay couples bring up children, we're still not, as a society,
completely comfortable with all of those things, let alone intersex.
Back to - ‘Intersex’ (Healthcheck). Duration 7 minutes 28 seconds

Germany allows ‘indeterminate’

gender at birth. Duration 2 minutes
16 seconds
Transcript
STEPHEN EVANS:
Well, the experts say it's something like 1 in 2,000 people, so that could be something
like 30,000 people in Britain, for example. Now, there are gradations of it, but in the
most extreme cases they basically have attributes of men and attributes of women.
And the difficulty's been that there is the authorities clearly tell the parents, you have
to decide male or female. There is no middle way.
And, in the past, what's then happened is that surgery has been done on newborn
babies to alter the result, if you like, to opt for one or the other. And people have then
lived with the results of that surgery.
There was an inquiry in Germany some years back, an official inquiry, where one
person testified that he felt like he was a patchwork creation of surgeons and had lived
with that pain ever since. And, in the light of that, lawmakers then said, OK, rather
than male, female, you can simply put an X in the box. And that will be an
indeterminate gender.
INTERVIEWER:
What does it mean for marriages and things like that?
STEPHEN EVANS:
Nobody quite knows. I mean, in this country the law says a man and a woman get
married and people of the same sex can have civil partnerships. There is no legal
provision for people of indeterminate sex. And I suppose you could say that, well, at
least now they're released from that difficulty, that mental anguish, of being
designated one sex when they're not quite that.
But, on the other hand, it opens another door, and that is what happens in schools, for
example, with these kids who are designated as neither one nor the other, officially
designated as neither one nor the other. Sports in schools do, do sports by gender,
often. Where do these kids fit in? So they may be closing one door, they may be
solving one problem, but it doesn't solve the whole difficulty.
Back to - Germany allows ‘indeterminate’ gender at birth. Duration 2

minutes 16 seconds

Paul Catley talks to Peter Tatchell.

Duration 17 minutes 41 seconds
Transcript
PAUL CATLEY:
I’m delighted today to be joined by the world famous gay activist, Peter Tatchell, who
has been involved for many years in a whole host of different campaigns to promote
gay rights. Peter, what was it that first led you to become a gay rights activist?
PETER TATCHELL:
I guess it was first and foremost realising that I was gay, and recognising the scale of
homophobic oppression that existed at the time in the 1960s when I was a teenager.
PAUL CATLEY:
So, what was the legal situation at that time?
PETER TATCHELL:
Well, up until 1967, sex between men was punishable by maximum penalty of life
imprisonment, and gay men could also be required by the courts to undergo
compulsory psychiatric treatment. There was no support for LGBT people at all in
that era. Pretty much the whole of society was against us, and I felt that I wanted to do
something together with others to change that.
PAUL CATLEY:
So, in the time since then, what would you say have been the big changes?
PETER TATCHELL:
Well, of course, Britain today is almost a different country compared to the 1960s.
Not only do we have almost legal equality, not quite, but almost legal equality for
lesbian, gay, bisexual, and transgender people, but we also have a huge shift in public
attitudes. Now, only just over a quarter of the British public believe that
homosexuality is mostly or always wrong compared to three quarters 40 or 50 years
ago.
PAUL CATLEY:
That’s a huge cultural change.
PETER TATCHELL:
It is a massive change and there’s, of course, the issue of visibility. When I was
growing up, there were no public figures who were openly gay, not one, and the only
time you ever heard about gay people in the news was when they were arrested for
mass murder, child molestation or spying. You know, the media coverage was
overwhelmingly negative and, of course, it led to internalised homophobia among a
lot of LGBT people, which prompted severe depression, often drug and alcohol abuse,
and even suicide.
PAUL CATLEY:
So, what do you think led to those changes?

PETER TATCHELL:
The changes came about when LGBT people said ‘we’ve had enough’ and, of course,
the number of people who said that at first in the 1960s was very small.
But gradually, slowly, more and more LGBT people came out, which is still the single
most important thing that any gay person can do because we know that if someone
knows a gay person as a workmate or family member or neighbour, they’re much less
likely to be homophobic. They’re much more likely to support equality and non-
discrimination. So, that’s really still important. Also, of course, just the cultural
representation of LGBT people. We’ve got so many famous people in politics,
entertainment, sport who are now openly gay, lesbian or bisexual or transgender.
We’ve got a whole host of TV programmes, soap operas, documentaries, films, radio
plays, books, which have LGBT characters, so it is a huge cultural, legal and political
change that we’ve witnessed, and it has been, I’d say, the most successful law reform
campaign, if we’re talking about law, in British history. When you think about it, in
1999, or up until 1999, Britain had by volume the largest number of anti-gay laws of
any country in the world, some of them dating back centuries. So, for example, the
law against anal sex between men was passed in the reign of King Henry VIII in
1533. It was not repealed until 2003. Likewise, the law against other sexual acts
between men, the so-called Gross Indecency Law, which sent Oscar Wilde to prison
in 1895, it was not repealed until 2003. So, a lot of people out there have the false
impression that the 1967 Sexual Offences Act legalised homosexuality. It didn’t. It
was a limited, partial decriminalisation. It didn’t apply to Scotland or Northern
Ireland. It was only applicable in England and Wales. It didn’t apply to the Merchant
Navy or to the armed forces where same sex relations remained totally in all
circumstances criminalised and, of course, what was actually legalised was just the
very narrow remit of between two men aged 21 or over, in the privacy of their own
homes behind locked doors and windows with the curtains drawn, so sex between two
men in a hotel room was deemed not to be a private place. If more than two people
were present in a house, so for example, if a gay man lived with other people, shared a
flat with other people, and brought his partner home, if he and his partner had sex
while flatmates were in the kitchen or living room, they were committing a criminal
offence because that was deemed to not be a private place, and the other people were
committing a criminal offence because they were deemed to be colluding with and
aiding and abetting an unlawful homosexual act.
PAUL CATLEY:
So, in terms of equality, the 1967 act was nowhere near making it equal with
heterosexual couples?
PETER TATCHELL:
It was an important reform but it was not nearly as liberal as it could and should have
been, and most aspects of gay male life remained criminalised and, on top of that, it
remained lawful by default because there were no laws to forbid it, for an employer to
sack someone because they were gay, or a landlord to evict someone because they
were gay. There was no legal protection against discrimination.
PAUL CATLEY:
And those rules on discrimination are now in the Equality Act of 2010, but do you
think that has now really made the situation absolutely equal?
PETER TATCHELL:
Well, no, because even the Equality Act is not really equality because there are certain
clauses such as the clauses on harassment, which state explicitly that these protections
against harassment shall not apply on the grounds of sexual orientation or gender
identity. And then we have other exemptions for religious organisations, not just
places of worship but faith-run schools, hospitals, nursing homes and shelters for the
homeless. They are allowed by law to discriminate against LGBT people if they can
demonstrate that it’s necessary in order to preserve their “religious ethos”. So, we’ve
got faith organisations that have exemptions that do not apply to anybody else. They
have these privileged exemptions and I think that’s profoundly wrong, because just as
much as I would oppose a person of faith being discriminated against or people being
given exemption to discriminate against a person of faith, I think people of faith and
their organisations should be held to the same equality commitment criteria as
everyone else.
PAUL CATLEY:
PHow do you think in the situation where you’ve maybe got a person who holds
profoundly strong religious beliefs; for example, someone running a bed and breakfast
establishment, who then wishes to discriminate against, say, same-sex couples. That’s
a difficult issue for the law of balancing, if you like, the interests of those two groups.
PETER TATCHELL:
Well, the law has decided that if you provide a public service, you’re not allowed to
discriminate on the grounds of race, gender, sexuality or any other reason, and the
purpose of that is to maintain a cohesive, open, welcoming society where everyone is
accepted and has equal treatment. So, just to reverse the situation, if a gay-run bed and
breakfast refused to accommodate someone because they were Christian, because
they objected to their Christian faith because the Christian faith is traditionally
homophobic, that would be unlawful and I would support that being unlawful because
I don’t think people of faith should suffer that kind of discrimination.
PAUL CATLEY:
So, do you think the law has got the right balance at the moment?
PETER TATCHELL:
Absolutely, the law is right to say ‘if you offer a public service, and a bed and
breakfast is a public service, you are obliged by law to not discriminate.’
PAUL CATLEY:
Do you feel then that the situation is, if you like, transformed and the battle is won?
There has been huge positive change and that is down to the tens of thousands of
LGBT people who’ve been part of this great historic law reform and social reform
movement and, of course, very importantly, our straight friends and allies. Together,
we have made these changes possible, and they are huge, they are extraordinary. I
mean, just think, you know, since 1999, almost all anti-gay laws have been repealed
or amended. That’s a phenomenal pace of change across a whole breadth of
legislation. There’s no other social law reform movement in British history that has
been so successful in repealing so many laws in such a short space of time, but we
still do have issues and problems. For example, there is still a ban on same-sex
marriage in Northern Ireland. Gay couples who love each other are not allowed by
Northern Irish law to marry the person they love. LGBT asylum seekers who flee
persecution in viciously homophobic countries like Uganda, Saudi Arabia, Nigeria,
Jamaica, Iran, and so on; they are Absolutely, the law is right to say ‘if you offer a
public service, and a bed and breakfast is a public service, you are obliged by law to
not discriminate.often denied asylum, they are often refused and ordered to go back to
their home countries where they will be at further risk of, not only perhaps arrest and
imprisonment, but even murder by homophobic mobs. There’s also the fact that we
still don’t have mandatory sex and relationship education in our schools, let alone
such education which includes reference to LGBT issues in order to reassure young
LGBT kids, who we know half of whom are bullied at school. Half of all LGBT kids
in our schools face bullying, ranging from teasing and name-calling to physical
threats and violence. It is truly, truly shocking that this is still continuing. On the other
side, we also have a third of all LGBT people have been victims of homophobic hate
crime, again ranging from abuse and insults to actual physical violence. That’s over a
million people. Over a million LGBT people in this country have been victims of
homophobic hate crime, often not once but perhaps three, four, even five times.
PAUL CATLEY:
So, in addressing that hate crime, do you feel that is a matter for the law or will it just
gradually recede as social attitudes change? What’s your prognosis?
PETER TATCHELL:
Well, we now have legal protection for homophobic, biphobic and transphobic hate
crime and that’s good but, deep down, what we need is a change in attitudes, in the
culture, and I think this is where education is so important and I feel very, very upset
that successive Labour and Conservative governments have refused to address these
issues in schools. My argument for a long time is that there should be mandatory
equality and diversity lessons in every school from the first year of a child’s primary
education continuing right throughout their primary and secondary schooling, and that
these classes should tackle all forms of prejudice, not just homophobic, biphobic and
transphobic prejudice but also racism, misogyny, prejudice against disabled people,
minority faiths, majority faiths, people with no faith. I think we know, undoubtedly,
that children are not born bigoted. They become bigoted largely because of the
influence of peers around them or perhaps parents and other adults. Early education
against prejudice can really make a big difference, and so if we want to tackle
bullying in our schools and hate crime on our streets, equality and diversity lessons
are part of the solution.
PAUL CATLEY:
In terms of the situation worldwide, what would you say are the really big issues
currently?
PETER TATCHELL:

We still have a situation where nearly 80 countries in the world today continue to
criminalise same-sex relations; with penalties ranging from a few years’
imprisonment right up to life imprisonment and even the death penalty in a handful of
Muslim-majority countries. When you look at this picture in terms of the
Commonwealth, the Commonwealth is one of the worst offenders. 40 out of 53
member states still have a total prohibition on same-sex relations. That’s 80% of
Commonwealth member states. Yet, the Commonwealth as we know has a categoric
commitment in its charter to equality and non-discrimination for all Commonwealth
citizens. So, there really is a lot more work to be done on the international stage but
there are glimmers of hope. We’ve had the decriminalisation of homosexuality in
recent years in Mozambique and also just very recently in Nehru, the pacific island
state of Nehru, so things are moving forward but still there is a long way to go to
ensure that parity on a global scale for LGBT and straight citizens. In many of these
countries, it isn’t just a matter of changing the law, it’s also about tackling extreme
anti-LGBT violence, whether it be from homophobic mobs who are just enraged that
someone is gay or suspected to be gay, or also it’s sometimes the case of organised
death squads in countries like Brazil and Mexico or homophobic mobs in countries
like Russia and Uganda. LGBT lives are at daily risk in nearly half of the countries on
this planet and that is truly, truly shameful in the 21st century.
PAUL CATLEY:
And do you think there is something which either the UK Government or UK citizens
could be doing about this?
PETER TATCHELL:
There’s no doubt at all that Britain ought to be playing a part with the wider
international community. It’s not our responsibility as Britain to do anything
specifically, although we could, but really we have to do it in partnership with the
wider international community, with the Commonwealth, with the European Union
and, of course, through the United Nations. But we can do things ourselves, for
example, Britain is to some extent, but could be doing more, to fund LGBT human
rights and equality organisations in countries where they are struggling against
dictatorship or criminalisation. There’s a great role to be played by the British Council
in using its resources to profile LGBT issues in countries where there is not yet
understanding and acceptance. Britain has a commitment at the moment to make aid
conditional on recipients’ support for LGBT rights. It’s not that Britain will cut aid
but the official policy is that the British government will switch aid from homophobic
governments, to organisations that don’t discriminate, and this is what has happened
in Malawi. Some of the aid to the Malawi government has been withdrawn because of
the anti-gay laws and persecution there but it hasn’t been taken away from poor
vulnerable people. It’s been switched to local NGOs and aid agencies in Malawi that
do not discriminate on the grounds of sexual orientation or gender identity. I think
that’s the right approach. Don’t cut aid. Switch it.
PAUL CATLEY:
So, if any students listening to this would like to know more, where would you
suggest that they look?
PETER TATCHELL:
Please go to my website: petertatchellfoundation.org. You’ll find a wide range of
news releases and campaign materials covering LGBT human rights and other human
rights both in the UK and internationally.
PAUL CATLEY:
And what would your final message be on this topic?
PETER TATCHELL:
Don’t accept the world as it is. Dream of a world without homophobia, biphobia and
transphobia, and then get active to help make it happen.
PAUL CATLEY:
Well, that’s a very positive end note to leave this on, so thank you very much, Peter,
for your time.
PETER TATCHELL:
My pleasure.
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Unit 2 Sexual Orientation and Gender Identity

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Unit 2: Sexual orientation and gender identity

W340-19J Law, society and culture

Unit 2: Sexual orientation and

Page 2 of 66 12th September 2019

This publication forms part of the Open University module W340

Alternatively, you may visit the Open University website at

The Open University,

First published 2018.

Copyright © 2019 The Open University.

All rights reserved. No part of this publication may be reproduced,

Page 3 of 66 12th September 2019

Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street,

Open University materials may also be made available in

Except as permitted above you undertake not to copy, store in any

Edited and designed by The Open University.

Printed and bound in the United Kingdom by The Open University.

Page 4 of 66 12th September 2019

Page 5 of 66 12th September 2019

 Your workload plan

 1 A note about terminology

 2 Gays, lesbians and the law

 2.2 A current issue: conflicting rights

 3 Trans people and the law

 3.2 The missing event

 3.3 A current issue: prisons

 4 People with intersex conditions and the law

 4.2 The missing event

 4.3 A current issue: recognition as intersex

 6 Conversation with an expert

Page 6 of 66 12th September 2019

Page 7 of 66 12th September 2019

1. gays and lesbians

This approach has been adopted to demonstrate how legal and

In looking at legal approaches the focus will be on the approach of

Page 8 of 66 12th September 2019

 have an understanding as to how the law has

Your workload plan

Page 9 of 66 12th September 2019

Unit 2 workload plan

Activity Title Estimated Resources Icon

3 Changes 1994– 20 minutes None (reflection)

12 Man or woman 30 minutes None (reflection)

13 The missing event 45 minutes None (reflection)

Discussion: Lots of questions

Page 11 of 66 12th September 2019

1 A note about terminology

Consider the extract in Box 1 by Thu-Huang Ha, entitled ‘How we

Box 1: How we should talk about transgender

Don’t conflate sex and gender.

This concept is fundamental to the trans community – and it’s

Take the time to find out a trans person’s preferred pronoun.

Page 13 of 66 12th September 2019

‘Tranny’ is the same as ‘faggot’, says Milan. TED speaker Kate

Interestingly, the extract on talking about transgender issues used

Page 14 of 66 12th September 2019

In Unit 1 you considered various definitions of gender. For

Defined difference between men and women based on culturally

(Black’s Law Dictionary, n.d.)

You also considered art 3(c) Istanbul Convention 2011, which

the socially constructed roles, behaviours, activities and attributes

Do you think these definitions work for trans people?

Page 15 of 66 12th September 2019

Achieving an approach that will satisfy everyone is not going to be

A wide range of terms could be employed to identify particular