‘The Sullivan Review Treats Trans People as an Inconvenience Whose Experiences Can Be Dismissed as Invalid’

Roughly five years ago, the NHS COVID-19 app launched. At the time it seemed as though men were getting the virus more severely than women. It was that which led to the then unprecedented (the word of the pandemic) “sex at birth” question being one of those you had to answer before progressing to other functionality.

After a while it became apparent that estrogen was an important factor in protection from covid. This meant that trans women, who tend to take estrogen, had a diagnostic pattern similar to other women, meaning that the “at birth” part of the question had been rendered redundant.

Trans people generally consider this to be an awful question, mainly because it’s saying to us that we aren’t really who we say we are. It meant that lots of trans people decided not to use the app. The established and inclusive better way is to ask what gender you are, then is that the same as was recorded at birth. That way you can capture people’s different understandings of their own genders.

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The same is true of almost all research, which looks at how someone lives rather than how they were born. In terms of medical or market demand, which is where almost all population statistics end up being used, current lived experience is key if you want to segregate by gender.

But that is not the finding of the recently published Sullivan report into the recording of sex and gender. Sullivan, whose research to date has been largely into literacy rates around the UK, was gifted the accolade of ‘gender specialist’ by then Secretary of State Michelle Donelan. Despite, or maybe because, her opponent at both the 2017 and 2019 general elections was me, Donelan seems to have bought totally into the Conservative culture wars, and appointed a key player in the gender “critical” movement to head up this review.

Unsurprisingly Sullivan bases her review on the immutable binary nature of sex. Just to remind readers, this is a statement of belief rather than evidenced fact. Indeed organisations representing over 3,500 scientists said precisely this in response to President Trump’s executive order stating that sex is both binary and immutable.

But Sullivan then states boldly that all research should ask about “biological sex” – another term which has no clear definition in science or in law – regardless of whether how you were born is relevant to the topic being investigated. She takes issue with what seems like a perfectly reasonable set of questions in an NHS staff survey, matching a trans-inclusive way of capturing relevant data.

Some of her recommendations touch on NHS protocols and use of data. When someone transitions into a different gender, they get given a new NHS number, because the NHS has viewed ‘sex’ as immutable for IT purposes. The individual’s old NHS record is then added as a note to the new record, but that means it cannot be searched other than visually. The ‘sex’ marker is used to automatically call you into various screening programmes. F means you get called for cervical and breast cancer screening, while M leads to prostrate checks. These may or may not be relevant for a whole bunch of people, not just trans people.

This has been an issue for as long as I can remember. As a computing professional with experience in managing data, I was involved in conversations with NHS people 15 years ago about the need for more granular data (for example whether someone has ovaries or not) and why couldn’t the ‘sex’ marker be amended, and it wasn’t a new conversation then. Each time NHS people said that changes were being considered, but the cost of implementing them would be high.

Instead Sullivan has used this experience to say that trans people’s NHS records should not be amended on transition – thereby meaning that the NHS would cease to recognise trans people’s core identities. It also wouldn’t resolve the screening issues, as some people still wouldn’t be called for risks relevant to them – trans women would stop being called for breast screening as an example. However that doesn’t appear to have stopped Health Secretary Wes Streeting posting on social media that “we’ll act on [the report’s] findings”. Sure enough, within hours the NHS was told to stop trans young people acquiring new NHS numbers.

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However case law, based on human rights law, says the NHS should not do this. Further, GDPR means that trans people cannot be routinely misgendered, even on computer systems. The European Court of Justice ruled at the end of last week held that Hungary’s Government had to recognise a trans person’s lived in gender because of GDPR. The court specifically noted that trans people had a right “to respect for and recognition of their gender identity.” If implemented, Sullivan’s proposals would violate the mutual recognition of data protection laws between the UK and the EU.

Despite this, the NHS 111 online app now asks for “sex at birth” as one of the early questions in triage, explicitly ruling out gender identity. Trans people I’ve spoken to will not use the app, or simply answer the question in line with their lived-in sex. It’s recognised that trans people generally have more health issues than the population at large, and that trans people are not studied separately for general health conditions. You would have thought that anything that deters a marginalised group from interacting with health services would be resisted, but apparently not.

Then you turn to how this report was generated. The call for evidence presupposed that trans people caused problems, using leading questions to elicit the desired responses. The entire survey was led with “the loss of robust data on sex in the UK has caused concerns.” No trans people were knowingly involved in the production of the report, even though some may have responded to the call for evidence. However plenty of gender “critical” people were involved – people who don’t actually have “skin in the game” unlike trans and intersex people.

Like Cass before it, this report treats trans and intersex people as an inconvenience, people whose life experiences can be dismissed as invalid. “We don’t believe trans people and you are who we say you are” rings throughout the whole exercise. It has a skewed view of any legal ramifications, authored by someone connected by marriage to a gender “critical” campaign group.

If Sullivan’s recommendations were implemented there would have to be specific carve outs exempting trans people from the basic right of privacy. It would also render the Gender Recognition Act practically meaningless. But, as we now see in Trump’s USA, that’s always been the end point of this extraordinarily well-funded campaign. And once you can deny basic rights to one group of people, it becomes easier to deny them to others.