Radical: Women are the casualties when judges capitulate to gender ideology

16 Jul

Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they founded Radical, a campaign for truth and freedom in the gender recognition debate.

No doubt you sometimes think the things we write about in this column are esoteric — debates about pronoun policies seem far removed from real life. But sadly, quite frequently, there’s a development in the sex/gender debate that brings it to life in an immediate and visceral way. The story of Keira Bell, the young woman whose judicial review centred on the puberty blockers she’d been prescribed, and surgery she’d undergone to try and transition her to the male gender, was one such case.

And now we have the story of “FDJ” — a woman (whose anonymity is protected by the courts) who was held in a women’s prison alongside male prisoners. FDJ sought a judicial review of the Prison Service policy that allows co-habitation to happen. Earlier this month, we learned that she‘d been unsuccessful, and the policy was found to be lawful.

We wrote recently about the Care and Management of Transgender Individuals policy, set by the Prison Service and the Ministry of Justice. This policy provides, broadly, that transwomen prisoners with a gender recognition certificate (GRC) will be housed automatically in the women’s prison estate (irrespective of any physical transition), unless risk assessment shows that the risk to women is “particularly high” (note that this accepts some risk is to be tolerated). Male prisoners who self-identify as women but do not have a GRC may be moved to a women’s prison after assessment by a specialist board.

FDJ’s legal action revealed that:

  • There are 34 transwomen prisoners without GRCs in women’s prisons. It’s unknown how many transprisoners with GRCs are in women’s prisons.
  • Many of these transwomen prisoners are sex offenders, convicted of assaulting women and children. It seems transwomen prisoners are more likely to be sex offenders than the male prison population as a whole, but again, prison service and MoJ data is incomplete and opaque.
  • There’ve been a number of sexual assaults on women prisoners by transwomen prisoners, but, yes, data on this is unclear, too — not least because the Prison Service doesn’t generally appear to record transwomen with a GRC as trans.
  • This situation causes many women prisoners (who’ve often had hard lives outside of prison, and been victims of sexual and domestic abuse by men) great anxiety and fear.

The court found, however, that the policy that led to this situation is lawful: the infringement of the rights of women prisoners can be justified by the “balance of rights” that favours respecting the gender identity of the transwomen prisoners. The provision of the Equality Act that allows trans people to be excluded from single sex spaces is permissive, not obligatory, so minsters are not required to apply it. Even if they did, excluding transwomen from women’s prisons might not be proportionate and legitimate: by existing case law, it is “impermissible” to exclude all transgender women prisoners from women’s prisons.

So, what can we draw from this case? First, it is striking that from the opening paragraph of the judgment, the judges use the contested and politicised terminology of gender-identity activists. Lord Justice Holroyde described the case as relating to “persons who identify as the opposite gender from that which was assigned to them at birth”. The outcome of the case will have come as no surprise, therefore, to any reader familiar with the capture of institutions by gender ideology.

Second, the haphazard data collection on transgender prisoners is troubling, and the court considered it “unsatisfactory”. This failing seems to stem in large part from the assumption that transgender prisoners with a GRC must automatically, and in all cases, be treated as biological women, and therefore they do not generally have data recorded about them in their capacity as trans.

Third, the judges considered that risk assessment and management is enough to safeguard women prisoners from the risks presented to them by the presence of males imprisoned alongside them.

In reality, the assumption that a “Complex Case Board” will always be able to weed out individual prisoners who are not sincere in their gender expression seems naïve. Evidence from Scotland shows that transwoman prisoners have reverted to their male identity as soon as they were released from women’s prisons, to the distress of the women prisoners who had been held alongside them. It would be interesting to know how many prisoners who claim to be transgender but do not possess a GRC are found by these boards not to be “sincere”, or to be too dangerous to be moved to the women’s estate.

The judges were satisfied that these processes of risk assessment and management are enough to discharge the duties of the Secretary of State in respect of the human rights of the women prisoners, even if it leaves them feeling distressed and afraid, and places them at increased risk of violence or sexual assault. The judges accepted all of these adverse consequences for women. And under the current legislative framework and case law, this may well be the legally “correct” conclusion. But this does not, of course, make it the right thing morally; the law can, and often has been wrong. And it is hard to think of a better example of UK law being blatantly wrong than this.

Beyond moral outrage over inevitable outcomes, there are concerning inconsistencies in the current policy. If risk assessment and management is thought to be enough to protect women from male violence, surely the same could be applied to the protection of transgender prisoners on the male estate? The sad truth is that the first “headline requirement” of the policy — “All individuals in our care must be supported to express the gender with which they identify” — leads to a burden of risk being placed on some of the most vulnerable women in our society.

This burden is not aimed at protecting transgender prisoners from violence, but at supporting them in expressing their gender identity. The cost to women, whether in physical attacks or simply in fear and distress is, by the formulation accepted by the judges, and by judges in cases before them brought by trans prisoners seeking relocation to the women’s estate, simply part of the “balance of rights” that has been deemed appropriate. Even within the constraints of the law as currently understood, though, it must be possible to frame a policy more respectful of the rights and interests of women prisoners.

Kate Coleman, director of Keep Prisons Single Sex, who supported this judicial review, emphasised to us that:

“This judgement is not the end of the matter. Our group of supportive and active MPs and Peers is growing and this week we have emailed out 30 PQs to be asked across both Houses. Going forward, Parliament will be a focal point for our efforts: if it is lawful to house a male prisoner convicted of rape alongside female prisoners who have been the victims of sexual assault, then the law needs to change.”

You can contribute to the KPSS crowdfunder here.

Caroline Nokes, Chair of the Women and Equalities select committee, once flippantly remarked that concerns about transgender prisoners were an overblown reaction to one high profile case. We hope, in light of the case bravely pursued by FDJ, that Nokes and her committee will take urgent renewed interest in the rights and wellbeing of women prisoners.

Maya Forstater: One’s sex can’t change. The story of my fight to ensure this view is judged “worthy of respect”.

14 Jun

Radical is a civil-rights campaign for truth and freedom on matters of sex and gender, committed to free expression and equal respect, founded by Rebecca Lowe and Victoria Hewson. This Radical piece is written by Maya Forstater, an independent researcher, writer and adviser.

Last week, I won a landmark Employment Tribunal case where my belief that sex is real, immutable and important was found to be “worthy of respect in a democratic society”.

The case concerned freedom of speech and belief, and how far employers can constrain these rights when it comes to talking about sex and gender.

The test of being “worthy of respect in a democratic society” is meant to be a low bar, ruling out only the extremist views of literal nazis and violent revolutionaries. The first tribunal found that my belief fell into this category. The appeal judge disagreed.

The judgment states clearly that no one has the right to harass others at work and, importantly, protects everyone from discrimination based on their belief or lack of belief. This means it protects people like me who think that the words “male” and “female” relate to sperm and eggs and the bodies built to deliver them. It also protects those who believe in innate-but-fluid gendered identities, and who prioritise  “gender expression” over anatomy.

The judgment sets a precedent that should encourage Liz Truss and Boris Johnson to stop the practice of Whitehall Departments and other public bodies bending the knee to the gender lobby by pledging their allegiance to Stonewall.

My story starts in 2018. While working for an international development think tank, I had begun tweeting and writing, in my own time, about sex and gender, during the government’s consultation on reform of the Gender Recognition Act.

Some staff at the headquarters in Washington, D.C. took exception and this set off an escalating process. The organisation panicked, my tweets were compiled, diversity and inclusion consultants were drafted in to assess them, and even though I was not found to have broken any rules or policies, the senior leadership conceded to the will of the offended that I should be cast out. Ultimately, I lost my job.

My belief that sex is real should be utterly unremarkable. This is what the law says, after all.

But it has taken me over two years and £120,000 in crowd-funded legal fees to get this far. I still need to return to the Employment Tribunal for it to decide whether I was discriminated against in practice.

Despite telling my employer that I would use any preferred pronouns that people wanted and would always act with usual professional politeness, I have been put through a two-year nightmare, had my career destroyed and been painted as an extremist “transphobe”  too dangerous to associate with.

Along the way, I have also been investigated by the Scout Association (where I was a Cub Scout Leader) after a bearded man I had never met reported my use of the pronoun “he” instead of “they” for that person  on Twitter. The Scout Association dragged me through a complaint process over 18 months. I was told to apologise to the man who had called me “transphobic”, a “TERF” and “scum”, and who had said that I would leave young people dead and was unfit to be a Scout leader.

Indeed, the Scout Association partially agreed. The fact that I had taken my employer to tribunal, and judgment of the first judge, were taken as evidence that I might not be fit to be a Scout Leader.

Another set of doors that were slammed in my face were legal. My employment tribunal case was turned away by two law firms (one that dropped it just a few days before I was due to launch the crowdfunding campaign). The Solicitors Regulation Authority responded to my complaint by saying that it did not breach its code “if a firm declined to act because the client’s views conflicted with its own principles and values, as long as these were not discriminatory”.

I have been turned down for jobs at other think tanks and universities, and all but erased from history in the sector where I worked. This has happened even as my inbox fills up with messages from former colleagues, professional networks and eminent professors saying that they agree with me but cannot say so publicly for fear for their own careers.

It is not that I have said anything extreme to warrant this, or that I have been a uniquely unlucky target.  The new organisation I have co-founded, Sex Matters, has heard from dozens of people, in a wide variety of sectors, who have been investigated and subject to workplace discipline for such crimes as liking tweets, defending J.K. Rowling or questioning workplace policies. Meanwhile, thousands  more people are afraid to speak up.

The Kafkaesque nightmare we find ourselves in reflects the capture of the levers of policy- and decision-making by a small but influential group of LGBT+ lobbying organisations.

This is institutionalised through the Stonewall Diversity Champions Scheme. It covers 25 per cent of the UK workforce  and includes  organisations ranging from the Government Legal Department, the Ministry of Justice and the Solicitors Regulation Authority to the BBC and Ofcom, as well as almost all universities, major private sector employers and voluntary organisations from Citizen’s Advice to Save the Children. Stonewall’s prescriptions are delivered by a churning cast of “account managers”: young men and women fresh out of university in shiny suits and directional haircuts assess the policies of major organisations, and tell them what to do and say when employees dissent.

Every day we receive emails from people within Stonewalled organisations who say they fear for their jobs.  They talk of the  “Stonewall Stasi”: internal “LGBTQI+ Allies” groups who are empowered to thought-police their colleagues. As part of the Stonewall scheme the groups undertake “reverse mentoring”, where a young cadre-member will re-educate senior management. They write policies on micro-aggressions and pronouns (which of course it would be a micro-aggression to question) and set up ever more intricate tripwires of language with which to set off new rounds of complaints.

Straight “allies” often outnumber homosexuals and transsexuals in these groups. Many of those who write to us and say they are afraid are gays and lesbians who have found themselves on the wrong side of Stonewall’s new sexless world.

My win is a step towards stopping this madness. It clarifies that there is legal  protection against discrimination and harassment for people who do not subscribe to the dogma that “trans women are women; trans men are men”, that “demisexual” is a sexual orientation, or that men can be lesbians. It protects those who refuse to call themselves “cis”, do not feel the need to put pronouns in their email signature or wear a rainbow lanyard.

It also provides protection for those who aren’t involved in political debates on sex and gender at all, but who know that sometimes sex matters. This includes elderly women on hospital wards, religious women asking for a female health-care professional and children in school who don’t want a gender-confused teenager of the opposite sex in their showers.

None of this justifies or requires hostility or harassment of people with a transgender identity. But we do not have to remake all of reality for them, and nor should complaints processes be used to harass, bully and victimise others.

No one else should have to go through the nightmare I and my family have been put through. The government should withdraw all government departments from the Stonewall Scheme, and produce simple, straightforward guidance on single-sex services, and on freedom of belief as provided for by law.

Radical: FOI requests have exposed how much gender ideology has captured our institutions

9 Jun

Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they founded Radical, a campaign for truth and freedom in the gender recognition debate.

Stonewall keeps hitting the headlines. When we wrote a fortnight ago about the Equality and Human Rights Commission’s decision not to renew its membership of Stonewall’s Diversity Champions Scheme, we said that a similar decision couldn’t come soon enough from the scheme’s other members, particularly the vast number of public organisations that’ve been blindly following the charity’s guide. These organisations have faced huge costs in money, time, and resources, only to be misled on important matters of law, and fed an ideology that leads to serious physical risks to women and children, and ironically, an implicit homophobia.

Since then, Stonewall’s chief executive has made a vile equivalence between people who are ‘gender critical’ (ie who believe that human beings can’t change sex) and antisemites. And, as predicted, many public and private bodies have quickly followed in the EHRC’s footsteps, withdrawing from the Champions scheme. Channel 4, universities including UCL, and police forces have all quit, as has the Ministry of Justice with the comment that the charity has “totally lost its way”. Liz Truss is reportedly “pushing for all government departments to withdraw”.

Growing recognition of Stonewall’s sad moral downfall is welcome, but clearly overdue. We thought it worthwhile, therefore, to highlight the process by which politicians, journalists, and wider society have become aware of Stonewall’s transgressions.

This is not by way of MPs holding ministers to account, or by journalistic investigation, but rather is thanks to the determined action of individuals, mainly women, who realised what was happening, and used tools such as Freedom of Information (FOI) requests to bring the truth into the open. These individuals are too many to name, but particular recognition must go to Nicola Williams and Fair Play for Women, Maya Forstater and Sex Matters, Naomi Cunningham and the Legal Feminist lawyer collective, and members of the policy-analysis group MurrayBlackburnMackenzie.

In honour of this important work, here’s a list of five of the most shocking and revealing disclosures concerning gender ideology that’ve been made following FOI requests. Such requests represent a formal way in which members of the public can obtain information held by public authorities, under the 2000 Freedom of Information Act.

  1. Top place among the latest revelations must go to the University of Oxford, whose submission to Stonewall’s WorkPlace Equality Index was revealed last week: 135 pages of substantial check-lists and supporting evidence, including screenshots of prescribed “social media activity”. It’s hard to imagine how much all this must’ve cost the university to put together — on top of the membership fees they paid Stonewall. Attached to the submission are two further documents, however: Oxford’s substantial 2018 Transgender Guidance document, and the slides of a powerpoint presentation entitled “LGBT+ 101”. These documents also reflect the classic hallmarks of Stonewall wording — e.g. references to sex “assigned at birth” — and its classic misrepresentations of the law. Some of the UK’s equality law is complex and contested, but it’s really not difficult to get the Equality Act’s “protected characteristics” right, as Oxford fails to do here. Moreover, it’s mind-boggling to conceive of one of the most respected universities in the world, long revered as a home of the acquisition of knowledge and commitment to searching out truth, putting together a document about its practices that includes the diagram above. Close behind Oxford comes the University of Bedfordshire, however. On being asked to provide information about its relationship with Stonewall, Bedfordshire’s FOI team confidently responded that “we do not have dealings” with the charity — on a letter featuring the Stonewall logo.
  2. Less amusingly, Fair Play for Women recently used the FOI process to obtain the Equality Impact Assessment carried out by the Prison Service in connection with the establishment of accommodation for transwomen prisoners, including dangerous sex offenders, in a women’s prison. This document revealed that the service disregarded the single-sex exceptions legally available, and prioritised the claimed need of transwomen (ie male) prisoners to “associate” with women and have access to “female services”, over the safety of women prisoners. The fundamental right of these endangered women prisoners to be treated as equal members of society has been violated, leaving them instrumentalised, by the state, in order to meet the interests of a certain set of male prisoners. The seriousness of what this FOI has revealed is hard to overstate.
  3. We’ve written several times over the past year about how gender-identity ideologists’ attempts to hijack the census have dangerously risked the accuracy of essential national data. In March, the ONS was obliged to correct the guidance it had issued for the 2021 census, following a successful legal challenge by Fair Play for Women. However, as we emphasised back then, many questions remain, not least about the determination process of the wording of crucial census questions. This is also the case regarding the upcoming 2022 Scottish census, which is being run by the National Records of Scotland (NRS), and about which MurrayBlackburnMackenzie has revealed the following: “[d]uring the question development phase for the sex question in the [2022] census, NRS met only with LGBT advocacy bodies. There is no evidence of consultation with independent statisticians or census data users in this period (see FOI correspondence)”. 
  4. The tireless work of the Safe Schools Alliance has uncovered and challenged many instances of the capture of schools by gender ideology. This includes recently obtained confirmation, through an FOI request, that Stonewall had urged the schools inspectorate Ofsted to mark primary schools as “requires improvement” or “inadequate” — the lowest grades in Ofsted inspections — if children as young as five had not been made “specifically” aware of “sexual orientation and gender reassignment”.
  5. The last document to make our top five is not an FOI request, but rather a recent insight into why public bodies are so reluctant to make this kind of material available to the public. The NHS had published its “glossary” of equality and diversity terminology. But when social-media users reacted with serious concern at the document’s embrace of contested terms such as “gender identity” and “white fragility” — alongside its failure to discuss legally-protected equality characteristics such as sex and religion — the NHS quickly moved to “password protect” it. Nonetheless, further inquiry can be expected into the document, not least from the MPs who’ve signalled their discontent.

This NHS incident reflects the way in which much of the information discussed above has had to be prised from public authorities, who — supported by Stonewall — sought to withhold material on the grounds it could cause reputational damage.

Now, fear of reputational damage is not a good enough reason to withhold disclosure under the FOI Act, but these organisations were surely correct in their presumption that information acquired could damage their reputations. So why was awareness of this reputational risk not a signal to the officials concerned that they should have thought harder about what they were doing?

And, as we asked in our last column, in that many of these organisations have their own legal and HR departments, how did they find themselves publishing formal policy documents including such basic, dangerous errors?

The biggest pressing questions, however, focus on why such crucial information about our public organisations was not openly available until formally requested by resourceful citizens. And what it is that our elected representatives — including the Women and Equalities Committee, whose persistent failings we’ve catalogued in these columns — are going to do about all this, now the extent of the capture of the UK’s institutions is finally being fully revealed?

Radical: As the EHRC leaves Stonewall’s diversity scheme, how many other organisations will follow?

26 May

Radical is a civil-rights campaign for truth and freedom on matters of sex and ‘gender’, committed to free expression and equal respect, founded by Rebecca Lowe and Victoria Hewson. This Radical piece is written by Rebecca, the former director of FREER.

There are some organisations that are typically presumed irreproachable: “You can’t criticise x… it’s a national treasure!”. Certain famous charities, and the NHS, come to mind. Yet to think that any person or group is beyond criticism is unhelpful — not least to them. Fair criticism helps us all.

For organisations, however, accountability is often more than a matter of improvement. Accountability keeps organisations focused on the good, and is a prerequisite for many. Any organisation taking taxpayer money, providing core services, dispensing important public information, working with children, and so on, must be formally held to account.

Doing so isn’t to show bad will towards them; it’s required. This isn’t just a matter of improving outcomes, in other words. Being accountable is an essential part of state (and various related kinds of public) behaviour, deriving from obligations to do with respect and transparency, correlative to basic rights.

Nonetheless, it’s easy to revert to assuming the best, particularly about organisations with laudable aims. This kind of thinking is bad enough on an individual level, but devastation can ensue when it’s embedded into the structures that are supposed to ensure accountability. Think of Kids Company. And the Oxfam Haiti scandal. Not only did individuals working within these charities do serious wrong, so did the people charged with holding them to account. Helping others comes with important obligations, not a free pass on how you behave.

With this in mind, let’s turn to the big “sex and gender” news of the week. Regular readers will be aware of our longstanding concerns about institutional capture. We’ve written again and again about how the UK’s core institutions — schools, universities, police forces, healthcare services, prisons — have been ruthlessly captured by a set of “charitable” organisations pressing the ideology of “gender identity”.

This involves not only denying the importance of biological truth, and putting women and children at risk of serious consequent harms, it also often involves the purposeful misrepresentation of law. This has been revealed many times. It’s been revealed by groups such as Fair Play for Women and Sex Matters. It’s been revealed in the fallout of judicial reviews. And none of it is surprising: it’s all there in the policy documents of your local core service providers. Just run a search for tell-tale words — “assigned at birth”, for instance — and you’ll find the evidence, no problem.

On one hand, therefore, it’s great news that the Equality and Human Rights Commission isn’t going to renew its membership of the Stonewall Diversity Champions Scheme. As the leading employment and discrimination lawyer Naomi Cunningham has neatly and extensively catalogued, “submitting to Stonewall” is not only extremely expensive and time-consuming for organisations, it also also puts them at serious risk of moral and legal wrongdoing:

“If you are a public body, it will distort your policies and decision-making in ways that will expose you to judicial review, and embarrassing and expensive climb-downs of the kind already performed by Oxfordshire County Council, the Crown Prosecution Service and the Office for National Statistics. But worst of all, depending on the nature of your functions, it may cause you to infringe liberties, mis-state the law, commit or condone criminal offences, and put children and vulnerable adults at risk of serious harm”.

But you have to ask (yet again) why organisations like the EHRC didn’t realise this for themselves, sooner. You don’t have to be a brilliant lawyer to recognise, for instance, that, as Cunningham points out, Stonewall’s standard presentation of the law regarding self-identification and single-sex spaces is severely lacking:

“Stonewall constantly pushes the idea that self-identification already has legal consequences, and self-identifying trans women (without a GRC) are automatically entitled to access women-only spaces. Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim. If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.” 

This should be obvious to anyone who’s read the Equality Act. Yet many of the Stonewall “Champion” organisations will not only have access to top lawyers, they’ll also have their own legal and specialist HR departments! After all, these organisations (the names of which are now hidden behind a membership paywall on the Stonewall website) include government departments, local authorities, and some of the most successful UK companies. The Times reported late last year that they included:

“Thirty police forces, 57 local authorities and 50 NHS organisations […] along with John Lewis, Marks & Spencer, Sainsbury’s, Tesco, the Post Office and dozens of universities [and that the] Cabinet Office, Foreign Office, Department for Education and Crown Prosecution Service are also signed up”. 

It’s not only the EHRC that’s currently reassessing membership, however. Last week, Essex University published the Reindorf Review — barrister Akua Reindorf’s inquiry into two serious “no-platforming events” that happened at the university.

Among the review’s 28 comprehensive, and often effectively damning recommendations, are the following: a) that the “University’s equality, diversity and inclusion policy documents, Charter and Strategic Plan should be standardised so that they all accurately describe the protected characteristics in the Equality Act 2010”; b) that the “Supporting Trans and Non Binary Staff policy and Harassment and Bullying Zero Tolerance policy should be amended to accurately state the law, in particular with a view to ensuring that they are an authoritative source of information for the purposes of the external speaker review process”; and c) that the “Supporting Trans and Non Binary Staff policy should be reviewed by a specialist lawyer and if necessary amended to ensure that it offers adequate protection and is lawful”.

The review’s final recommendation focuses on Essex’s relationship with Stonewall, suggesting the university should “give careful and thorough consideration to the relative benefits and disbenefits of its relationship with Stonewall, bearing in mind the issues raised in this report”.

This is noted particularly regarding how “this relationship appears to have given University members the impression that gender critical academics can legitimately be excluded from the institution”. But it’s clear the review’s findings reflect generally on the legal advice regarding sex and gender that Stonewall has presumably persistently provided to Essex as a member of the Champions programme. As yet, Essex hasn’t renounced its membership — but surely this will come soon.

Not soon enough, however. And that stands for the vast number of public organisations that have also been blindly following Stonewall’s guide. It’s not only matters of law on which the public has been misled, after all. Just think about Stonewall’s general unconditional evangelism of “gender-identity” ideology.

The way in which this ideology has taken hold has not only put some of the most vulnerable children in our society on a medical pathway towards to infertility and long-term health risks, but also to the homophobic assertion that it’s wrong for a gay woman to refuse to have sex with a male-bodied transwoman. Yet Stonewall still claims to be a leading gay-rights charity — as, of course, it once was.

It’s devastating that a charity that has done so much good has fallen so far. But it’s not unthinkable. It never is. Whenever we assume that charities are beyond reproach, we leave unprotected those people they claim to protect, and are at risk of violating basic rights.

Radical: The criminal justice system has been thoroughly captured by gender-identity ideology

12 May

Kate Coleman is Director Keep Prisons Single Sex.

In February 2021, the Judicial College published a revised edition of the Equal Treatment Bench Book. It’s been significantly updated, at almost double the length of the previous edition.

The Bench Book aims to advance fundamental principles of fair treatment and equality. It suggests steps for judges to redress inequality arising from difference or disadvantage, to ensure fairness for all those engaged in legal proceedings.

While not intended as an expression of the law, it states “judges [and other court officiants] are encouraged to take its guidance into account wherever applicable. [The Bench Book] is increasingly cited in judgements and by practitioners as to the approach to be adopted”.  

Chapter 12 is entitled “Trans People”. Gender reassignment is a protected characteristic in the Equality Act, and the law is clear that no individual should be discriminated against based on gender reassignment. The inclusion of this chapter is therefore appropriate. 

However, in common with much current policy and guidance across public and private sectors, this chapter is steeped in the ideology of gender identity, which is unquestioningly presented as uncontested fact. This “institutional capture” has been comprehensively discussed elsewhere

The Bench Book goes far beyond appropriate and reasonable steps to ensure that transgender individuals engaged in legal proceedings don’t suffer disadvantage and are treated with respect and assisted in participating fully. Instead, the law is misrepresented, with judges urged to act according to these misrepresentations.   

The first inaccuracy occurs early in Chapter 12, and informs much of what follows: “The Gender Recognition Act (2014) (‘GRA’) enables transgender people to change their legal gender by applying to the Gender Recognition Panel for a Gender Recognition Certificate (‘GRC’).  […]  A person who has been issued with a full GRC is entitled to be recognised in the gender stated on their certificate for all purposes…” 

This ignores provisions in the GRA that allow, for example, a male in possession of a GRC stating that legal recognition of female gender has been obtained, to be lawfully treated differently from biological females. Possession of a GRC expressly does not affect recording of parenthood, for instance. The possibility of being convicted of a crime defined as one that only a male can commit is unaffected by possession of a GRC, as is the possibility of being the victim of a crime defined as one of which only a female can be the victim. Primogeniture is unaffected. Males with a GRC can be excluded from “gender affected sports” for females where necessary to ensure fair competition and/or competitor-safety. 

The Judicial College also ignores the single-sex exceptions in the Equality Act, which permit males to be excluded from single-sex spaces where this is a proportionate means to a legitimate aim.   

The Judicial College gets the GRA wrong again in respect of section 22 of the GRA, which makes it a criminal offence to disclose “protected information” that an individual has obtained or applied for a GRC, where that information was acquired in an official capacity. The Bench Book is correct that it is not an offence to disclose such protected information where required for court proceedings. However, Section 22 includes other circumstances where protected information may be disclosed, including for investigating crime, and for the purposes of the social security or pension system — which The Bench Book disregards. 

Most importantly, disclosing information concerning someone’s transgender status can only be criminal if that information was acquired in an official capacity. This is contrary to the widespread belief, often reflected in policy and guidance, that it is an offence to reveal that someone is transgender, regardless of the basis on which this information was acquired.  Moreover, section 22 self-evidently does not apply to information about a transgender person who has never applied for a GRC.   

This misunderstanding of section 22 creates a chilling effect. Citing section 22, The Bench Book states “the court may consider making reporting restrictions under Section 4 of the Contempt of Court Act (1981) to prevent disclosure of a transgender person’s previous name and transgender history, or it may direct a private hearing”.

Judges are instructed in the book that “deadnaming” (using or referring to a transgender person’s previous, now rejected name) must be avoided, as it is “highly disrespectful and may well be inhibiting and possibly humiliating to a witness”. Again, support for this is claimed, questionably, from Section 22.   

Judges are informed that it is “rare” that the biological sex of a transgender person will need to be referred to in court. The motives of those who seek to do so are disparaged: judges are advised that “It is important to be alive to the fact that the gender history of a person may be something an opponent litigant may seek to use in order to place pressure on them…”.  

Reflecting a widespread tendency in policy and guidance (though not the law, which does not recognise self-ID) the Judicial College states that it should be possible to recognise a person’s gender identity and their present name for nearly all court purposes, regardless of whether they have obtained a GRC and without any further inquiry. Further inquiries are discouraged on the grounds that these would be “intrusive and offensive”, and (the book claims) may constitute a breach of the individual’s right to respect for private life under Article 8 of the European Convention on Human Rights.   

The cumulative effect is that a person’s gender identity is to be accepted on the basis of self-ID, transgender people are to be considered to be the sex they identify as for all purposes, and referring to their former name or biological sex, or using pronouns appropriate to that sex, are potentially criminal acts. The motives of counsel who consider biological sex or transgender history to be relevant are viewed with suspicion. Reporting restrictions or private hearings are suggested.   

The criminal justice system has been thoroughly captured, therefore, and is in thrall to gender-identity ideology. Even before this latest Bench Book was published, female pronouns and names were consistently used to refer to male offenders who identified as transgender, by defence, prosecution, judges, and witnesses, including when the male in question was on trial for serious sexual offences. All with questionable legal basis. 

This matters fundamentally because it communicates a lie. It matters in court when victims and witnesses are instructed that the evidence they give must be “respectful of pronouns”.  Victims of violent offences have been compelled to use female pronouns to refer to their male attackers. Males convicted of sexual offences against children have been referred to at trial as female. Where do the limits lie concerning who will be compelled to describe their male attacker as a woman?  

Words are powerful, and the drip-drip effect of repeated reporting that serious violent and sexual offences have been committed by women distorts our understanding of the known differences between patterns of male and female offending . This affects our thinking about risk and safeguarding. Transparency and openness in judicial processes are important principles. It should only be in rare and carefully justified circumstances that the right to privacy requires reporting restrictions or a private hearing. Referring to biological sex, ‘misgendering’ or ‘deadnaming’ are not such circumstances. 

The Judicial College, and the individuals who contributed to this edition, should be accountable for what is, at best, carelessness of the law. We are all equal before the law, but it appears that the Equal Treatment Bench Book would have it that some are more equal than others. 

Radical: What consequentialism and Peter Singer have taught me about the gender debate.

28 Apr

Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. She is co-founder of Radical.

Until recently, it would’ve been funny to hear someone claim it controversial to state that only “adult human females” are women. You could even imagine this being used as an example, back then, of “something we all believe to be the case”. It’s not so funny any more.

I couldn’t care less, however, what word is used to denote members of the female sex set — as long as it’s one that’s generally understood. Use “shwoman”, or “WTDMOTFSS”, for all I care. But we need such a word. And for many reasons — though I can’t be bothered to write about them again, not least because I know you know them, even if you pretend you don’t!

I also know you know that human beings can’t change their biological sex, no matter how much some people want to, or how much it would mean to them for others to pretend they can. We should be kind to such people. That doesn’t extend to propagating falsehoods about biological fact, however; I’m not convinced such lies are kind, anyway.

But I know you know about the immutability of human sex (or that you would, if you’d ever thought about it) because it’s an obvious fact of life. Unless, of course, you truly have been taken in by the “gender-identity” lobby, which has captured our institutions and edited formal public discourse, rather than just pretending you’ve been taken in by it, because you’re scared about what might happen to you, otherwise.

Let’s turn to that. If you hold any of these standard sensible beliefs — that human beings can’t change biological sex, that sex matters, and that we need to be able to talk about these things — then you’d better follow Maya Forstater’s appeal this week. She was sacked for stating these beliefs in public, and is going through a horrific ordeal to try to redress the matter, in the hope you won’t have to.

But I want to use the rest of this Radical column to talk about something related, but, on the surface, much more niche. I want to talk about consequentialism: the moral theory that holds that consequences are the only consideration on which normative stuff (like acts) can be judged, in terms of that stuff’s rightness. Or, in simpler terms, the idea that only consequences matter, morally. The most famous consequentialist theory is utilitarianism, which John Stuart Mill described as based on “the ‘greatest happiness principle’ [which] holds that actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness”.

I grew up hating consequentialism, and particularly the work of its modern high priest, Peter Singer. My childhood beliefs followed these lines: “Consequentialists think the one can be sacrificed for the many!”; “Singer thinks infanticide is OK!”. And the more about his ideas I learnt, the more sure I was that this man was in the league of other 1990s’ villains, like Saddam Hussein. I mean, Singer did genuinely say that parents should be allowed to kill their newborn disabled babies…

This early hatred of Singer wasn’t something foisted on me by my parents, who talked to me about all kinds of philosophical ideas. It was just something I came to think. And these days, I still hold a hardcore view about the evil of consequentialism — though, now, it’s from the position of having read lots of it and about it, and having spent much time thinking about these things. The greatest blessing for me has been having wonderful philosopher parents; the greatest happiness is thinking about philosophy for myself. Now, let me explain why this indulgent bit of self-history is relevant to this column.

Last week, the first issue of the long-awaited Journal of Controversial Ideas was published. It’s edited by Singer, alongside two other philosophers, though Singer appears to be its prime spokesperson. My assumption was this journal would be a place for full-on Singer-style controversy. After all, a recent New Yorker interview shows he still believes parents should be allowed to kill their disabled babies.

So, imagine my surprise when I looked down its contents page and spotted an article defending from attack the idea that “trans women are women” (TWAW). Hilarious! Such an article is not the slightest bit controversial! TWAW is straight-up societal orthodoxy — particularly in intellectual circles. Sure, you might point out there’s also an article in the issue from “the other side” of the debate. Great. But it’s hardly controversial for a journal focusing on controversial ideas to publish a piece on a super-controversial topic — and what’s more controversial than arguing that only “adult human females” are women?

It’s also hardly controversial to slip into the whole “equal public space for both sides of the argument” thing, to hide behind the veneer of neutrality. Indeed, another sad orthodoxy of the moment is the denial that there are some matters about which there are truths: that there are topics on which it’s not about seeking consensus, but rather, about searching out what’s right and wrong.

To those of us who still believe in such enquiry, some truths are determinable via the scientific method: truths relating to whether human beings can change sex, for instance. And some are moral truths, for which there is no hope of scientific discovery. Rather, we need arguments about values, which we expose to each other, sure that there are right and wrong answers, but that nobody can know for certain whether they’ve landed on them, beyond being persuaded that they have.

Of course, some people don’t believe there are right and wrong answers to moral questions. And it can be hard to persuade them otherwise. But one technique I find helpful is to instrumentalise the views of Singer, and say, “But don’t you think it’s just totally blatantly horrifically wrong to kill disabled babies?”. If you think so, then you think it’s a matter of truth.

Singer doesn’t deny the existence of moral truths. But consequentialists do typically deny the idea that we can’t know for certain whether we’ve landed on these truths or not. They think consequentialism provides a sure-fire route: a calculator for determining right and wrong. This is its greatest selling point.

Consequentialism is seductive because it offers a (supposedly) simple approach for dealing with complex important matters, and because at its fundaments is something that’s not only undeniably important, but is also a part of everyday moral reasoning: the consequence. Consequentialism elevates the consequence into the lone foundation of a neat framework that can be be used to understand and assess difficult interrelations between good and bad and right and wrong. This is attractive to anyone believing there are moral truths out there to discover.

Well-known objections against consequentialism’s success as a moral theory, however, include the way in which its classic instantiations deny what John Rawls called the “separateness of persons”. Consequentialism thrives on treating individuals as a means to an end. And it can be used, therefore, to defend intuitively horrific things, like massacres, and the killing of disabled babies.

I’ll leave you with something to consider. In that New Yorker profile I mentioned, which Singer view do you think it was that the interviewer seemed to push back on the most, substantively? Was it Singer’s fight for the right to infanticide, or his keenness to publish journal articles on both sides of the “gender” debate? Answer that. Then have a think about what the predictable answer tells you about society today.

Radical: The ideology of gender identity has been adopted at UK prisons, putting biological women at serious risk

14 Apr

Victoria Hewson is a solicitor and co-founder of Radical, a campaign for truth and freedom in the gender recognition debate. She and Rebecca Lowe, her co-founder, alternate authorship of this column on trans, sex and gender issues.

Transgender prisoners hit the US headlines last week, after it was revealed that hundreds of male prisoners in California have applied to transfer to women’s prisons under a law that came into force at the start of the year.

Under the new law, The Los Angeles Times reports: “all inmates will be asked upon admission about their gender identity, their pronouns, whether they prefer the female or male search policy, and if they want to be housed in an institution that aligns with their gender identity”.

It has been disclosed that 261 prisoners have requested to be transferred, of which only six wanted to be moved to a men’s prison. Twenty one requests have already been granted (and none have yet been refused) to trans-identifying male prisoners, meaning they will be moved to women’s correctional facilities, to the horror of many female prisoners and officers.

You may think this is just an example of the “woke” agenda being pursued by Democrats under the Biden administration. But regardless of your views on American politics, you should be aware that the UK has had such policies in operation for several years.

In England and Wales, under the Ministry of Justice and HM Prison and Probation Service’s policy, set out in The Care and Management of Individuals who are Transgender, prisoners are accommodated by default in accordance with their “legal gender”.

This means that biologically male offenders who have a gender recognition certificate (GRC) — and are, therefore, legally regarded as female (for almost all purposes) — are automatically housed in the women’s prison estate. In theory, if these prisoners are determined to pose a high risk to other prisoners, then they could be moved to the male estate. But owing to the policy’s extreme interpretation of the Equality Act (EA), the prison service is only meant to do this if they would take the same step in respect of a high-risk natal female prisoner — to avoid the risk of discrimination on the basis of gender reassignment.

However, male prisoners who do not have a GRC, and are, therefore, still legally regarded as male regardless of how they “self-identify”, may also request a transfer to a women’s prison, if they “express a consistent desire to live permanently in the gender with which they identify, and which is opposite to the biological sex assigned to them at birth”. In these cases, the matter is considered by a specialist board. If the members of the board find strong evidence that the prisoner is “living in the gender they identify as”, they may decide that a male prisoner should be accommodated in a women’s prison.

In Scotland, the policy is even more permissive. The Scottish Prison Service 2014 policy document Gender Identity and Gender Reassignment Policy for those in our Custody is proudly emblazoned with the logos of trans pressure groups Stonewall and the Scottish Trans Alliance. It states that “the accommodation provided […] should reflect the gender in which the person in custody is currently living”. There is no requirement for a GRC.

Both policies bear all-too-familiar hallmarks of regulatory capture: they refer to a person’s sex as “assigned at birth”, and uncritically adopt the ideology of gender identity. Both also purport to treat prisoners in accordance with the requirements of the EA. The England and Wales approach, for instance, proceeds on the basis that “[w]here individuals have gained legal recognition, they must be treated in accordance with their legally recognised gender in every respect” — citing the EA.

But this is, at best, a contestable assertion. Gender reassignment is a protected characteristic under the EA, and discriminating against a transgender person on that basis is indeed generally unlawful. This kind of discrimination is legally permitted, though, where it is a proportionate way of achieving a legitimate goal. Yet there is no evidence in either policy that the prison authorities considered whether excluding biologically-male prisoners from women’s prisons might be a proportionate way of protecting female prisoners and prison officers from the general risk posed to them from male offenders.

Fears about such risk are clearly not just a matter of abstract principle. Nor is it fair to claim, as one often hears, that they must simply be based in transphobic hostility towards transwomen. Rather, these fears stem from the unarguable position that women are at general risk from men owing to biological differences and patterns of offending. It is also important to note that the data on transgender prisoners in the UK prison systems is of poor quality — partly because of the recording of legal gender instead of sex — but that such information that has been pieced together shows that up to half of transwomen prisoners are sex offenders. Moreover, there have been horrifying documented instances of male prisoners who identify as female assaulting the women with whom they have been imprisoned.

On topic, you may have heard the news that a female prisoner who was sexually assaulted by a transwoman prisoner (who was serving a sentence for serious sexual offences against women and a child) has applied for a judicial review of the policy in England and Wales. The case derives from the claim that the policy indirectly discriminates against women, and violates their human rights, such as the right not to be subject to torture, or inhuman or degrading treatment or punishment. The application was heard in early March this year. The transwoman prisoner concerned was still at that time being held in the general population of a women’s prison.

The issue is complex, not least because there are clear risks for transwomen prisoners in men’s prisons. But what is not clear is why those prisoners’ interests should be (seemingly unquestioningly) prioritised over the interests of the vulnerable women in women’s prisons.

The MoJ argues that a legitimate aim of its policy includes “facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health”. This is may well be a legitimate aim — but it cannot be the only legitimate aim of the policy. Why have the MoJ, and UK prison services, defaulted to the assumption that biological women prisoners must be placed at any level of increased risk, in order to protect a certain category of male prisoners, many of whom have been convicted of violent or sexual offences, without even considering the exceptions available under the EA that allow for separate provision by sex?

In light of all of this, it is extremely disappointing that the chair of the Commons’ Women and Equalities Committee takes such a flippant and ill-informed view on the issue, claiming that concerns about transgender prisoners reduce to one isolated case.

It is also interesting to reflect on how recently overturned demands to introduce self-ID — both in relation to the Gender Recognition Act, and to the collection of Census sex data — would have played out in this context. The current “prisoners dilemma” exemplifies how distorted sex data, the GRA’s poor drafting, and questionable interpretations of the GRA and the EA by authorities, are already placing biological women at serious risk.  

Radical: Have you been following the ONS census sex question fiasco? If not, here’s what you need to know.

19 Mar

Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. She is co-founder of Radical. She and Victoria Hewson, her co-founder, alternate authorship of its column on trans, sex and gender issues, and are co-authors of the article below.

Have you been following the census ‘sex question’ fiasco? If not, then you’ve been missing out on one of the most important political stories of recent years — and my use of the term ‘political’ signifies a justification for this grandiose claim.

The census, after all, should be an apolitical matter, you might think. Surely, you’d say, it’s a matter reserved for data geeks analysing information collected directly from the person in the street (or wherever the person happens to be on Census Day). But, aside from the fact that, within a political society, no matter of public business is fully apolitical, this year’s census has become very much politicised. And this is something that should concern us all.

At Radical, we first wrote at length on the topic of the ‘sex question’ back in October, when we issued the following warning:

“Gender ideology has penetrated our institutions so deeply that, even without self-identification becoming a matter of law, the insidious idea that one’s sex is solely a matter of personal demand is seeping into policy and practice, almost unnoticed. Yet the damaging effects of this will be far-reaching, and one of the most worrying examples regards the case of the upcoming census.”

Back then, we reported that social scientists and statisticians were concerned about the guidance that was being produced to accompany the 2021 census. In a Sunday Times letter, almost 100 academics noted that this guidance would “effectively transform the sex question into one about gender identity”; they highlighted their fear that this would “undermine data reliability on a key demographic variable”.

As one social scientist, whom I spoke with this week, emphasises:

“Political changes to the census do not provide evidence for the claims activists wish to make, but they do impact on the quality of the research tools depended on by genuine social scientists. Changing census questions reduces its comparability over time, for instance. It should also be pointed out that advocacy groups use statistics, often misuse them, in order to justify their own incomes.”

Some important progress has been made on the sex question, however. Following a recent successful legal challenge by the campaign organisation Fair Play for Women (FPW), the Office for National Statistics, which is in charge of the census in England and Wales, has, as reported by FPW, now ‘conceded that the proper meaning of Sex in the Census means sex as recognised by law’.

An urgent change, to this effect, has been made to the guidance that the ONS had already issued. However, many questions remain. Here are three, to begin with:

1) How did the ONS settle on its initial 2021 guidance?

This is a question not only about the particular wording of the guidance, but also about how that wording was determined. As we discussed in October, questions remain about the formation of the ONS’s 2011 guidance on the sex question.

The approach that the ONS took appears not to have been subject to consultation; according to the ONS, it was done “at the request of the LGBT community”. Of course, input to the deliberative process of public business should always be welcome, but consultation should be wide-ranging, and the opportunity to respond should be open. Contentious questions of sex and gender are not the preserve of groups whose work is particularly focused on these matters — they are of relevance and importance to everyone.

The policy analysis organisation MBM has raised similar questions about the approach of the National Records of Scotland to the upcoming Scottish census (which will take place in 2022), reporting that

[d]uring the question development phase for the sex question in the [2022] census, NRS met only with LGBT advocacy bodies. There is no evidence of consultation with independent statisticians or census data users in this period (see FOI correspondence)”. 

Conflicting statements and rapid shifts of approach from the ONS on their 2021 sex question guidance haven’t helped, either. Having confirmed in January that the question would relate ‘very simply to your legal sex’, it became clear the following month that one’s passport would be included in the exemplar documents, listed in the guidance, which respondents would be recommended to use to inform their answer.

And, as FPW emphasised, passports do not record legal sex — in that you can change the sex recorded on your passport, as you see fit, without having obtained a Gender Recognition Certificate (GRC). Now, why did the ONS change its approach? And what is being done to address serious concerns about institutional capture?

2) What is the purpose of the sex question?

While it is good news that the ONS has corrected its guidance, it should be noted that one’s legal sex and one’s biological sex are not identical.

The 2004 Gender Recognition Act (GRA) allows people, on having met certain conditions, to obtain a GRC, which entitles them to be treated as belonging to the opposite sex set for (almost all) legal purposes. This does not mean, however, that it is possible to change one’s biological sex. It is unfashionable (to put it mildly) to state this so baldly, but it is the truth, nonetheless.

And if it is the case that reliable census data is required regarding the membership of the two biological sex sets, not least for the purposes of UK public policy — including the allocation of vital medical resources — then being asked to record one’s legal sex, rather than one’s biological sex, is, at least superficially, a peculiar choice.

Now, this is not to suggest that legal sex, or other descriptors, should not also be recorded. Indeed, this year, the ONS has also included an optional census question pertaining to gender identity, and there are good reasons for including such questions. But conflating these matters is the kind of bad practice that leads to unfortunate unintended consequences — in this case, not least regarding public respect for biological truth. And, again, the process for determining what questions are asked in the census, and how these questions are worded, should be transparent and open.

3) What about other forms of data collection?

As we’ve discussed previously, census data is extremely important. But the census is neither the only means of collecting public data, nor arguably the most important for some of the kinds of public-policy-making typically referred to in discussion of these matters.

Rather, that accolade could be afforded to the Labour Force Survey (LFS), which is also run by the ONS. This is because the census, whilst crucial for geographical and long-term historical purposes, goes out of date extremely quickly, and isn’t as helpful for analysing short-term trends over time, or addressing pressing matters such as evidencing discrimination patterns. This is not to undermine the census’s importance.

But the LFS reports quarterly, and, as the ONS explains, ‘provides data at a level of precision not matched by any other regular household survey’. Now, it’s unsurprising that there are many differences between the ways in which the LFS and the census are designed and carried out. But when the ONS makes significant changes to census categories, it’s naive to think this won’t have a significant impact on its other forms of data collection. So, what might this year’s census debacle mean for the LFS, and for vital work depending on reliable data sets, more generally?

Radical: Trying to define conversion therapy is more complicated than it seems

17 Mar

Victoria Hewson is a solicitor and co-founder of Radical, a campaign for truth and freedom in the gender recognition debate. She and Rebecca Lowe, her co-founder, alternate authorship of this column on trans, sex and gender issues.

Last week saw a Westminster Hall debate and resignations from the Government’s LGBT advisory panel over the issue of ‘conversion therapy’. And yesterday on this site, Sue Pascoe and Crispin Blunt made an emotive case for the inclusion of ‘gender identity’ in the ban they are seeking.

The most striking thing about their piece was the failure to address what exactly they believe the term ‘conversion therapy’ encompasses, if it is to incorporate matters of ‘gender identity’, or to acknowledge the serious adverse implications of their preferred approach.

Campaigners are seeking to portray this as a straightforward campaign to protect vulnerable people from abuse. In reality an existing issue is being exploited by gender-identity activists to further entrench gender ideology in medical practice.

What is conversion therapy?

Sometimes called ‘gay conversion therapy’, the term used to be understood as ‘treatment’ for homosexual people to ‘cure’ them of attraction to the opposite sex. Often associated with religious communities, historically it typically involved medical or pseudo-medical interventions, including horrifying procedures like electric shock therapy. Such ‘therapies’ are often cruel and abusive, exploiting the trauma of sometimes troubled individuals, struggling to accept their sexual orientation, who may have already been stigmatised and abused in their families and communities.

The May government pledged in 2018 in its LGBT Action Plan to end ‘conversion therapy’. Recently, the Johnson government has affirmed its commitment to ending conversion therapy, but has been seeking evidence on its prevalence.

Given that in the UK today, all major UK therapy professional bodies and the NHS disagree with such practices on logical and ethical grounds, it seems sensible to identify where and by whom such practices are still being carried out, before embarking on law-making to counter it. If it is the case that these practices have already been effectively banned, by law and by professional standards regulation, then passing additional laws is unnecessary, and passing unnecessary laws always comes with the risk of unintended consequences.

The 2018 action plan did not define ‘conversion therapy’, however — and included the experiences of transgender people in its findings on the matter, which implies a broader understanding of ‘conversion therapy’ than the traditional understanding discussed above.

Indeed, the BBC now defines conversion therapy as ‘any form of treatment or psychotherapy which aims to change a person’s sexual orientation or gender identity’. And Stonewall, which has been campaigning strongly for a ban, define sit as including ‘any form of treatment or psychotherapy that aims to change a person’s sexual orientation or to suppress a person’s gender identity.’

On these more expansive definitions, the term becomes something different from its ‘traditional’ use as a shorthand for the widely understood term ‘gay conversion therapy’. This complicates things. It means that the seemingly simple matter of finding out whether something that is morally wrong — ‘gay conversion therapy’, as discussed above — is being practised under the name of ‘therapy’, now also involves seeking answers to questions about other kinds of unrelated practice.

Accordingly, trans rights activists and LGBT groups are calling — under this umbrella of ‘conversion therapy’ — for a ban on talking therapies aimed at trying to help people suffering from gender dysphoria to reconcile themselves to their biological sex, without embarking on pathway of drugs and surgery as part of a transition.

This is clearly a very different kind of practice from ‘therapies’ seeking to stifle people’s natural sexual orientation. It includes the kind of therapy that might be offered to a young girl who thinks she might be transgender, to try and help her accept her female body, perhaps by exploring other factors in her life such as autism (which is very common in trans-identifying girls).

Indeed, any course of formal action that does not involve accepting the assertion of a person that they are trans, and that they therefore need to be assisted towards becoming more like the opposite sex, could be caught by a ban on conversion therapy, if it incorporates the new expansive understanding of the term.

Gender agenda

There is a further complication. Groups who wish to include gender identity ‘suppression’ within a ban on ‘conversion therapy’ should explain how transgender treatments like hormones and surgery do not themselves amount to gay conversion therapy. Why should we not consider it to be the case that children (who are unable to consent to such ‘treatments’) who have been set on these medicalised pathways by UK medical professionals have, therefore, been made subject to gay conversion therapy?

The vast majority of gender non-conforming children (a phrase which, in these gender obsessed times, is typically used to refer to girls and boys who simply do not confirm to sex-based stereotypes) do not transition. Rather, they accept their sex, and many of them grow up to be gay. So it is surely possible to frame the kind of ‘therapy’ and medical interventions that are carried out on such ‘trans children’ as a form of conversion therapy. Turning gay and lesbian young people into ‘straight’ transpeople, in this way, is sometimes called ‘transing the gay away’.

Influential groups like Mermaids have long favoured ‘affirmation-based’ approaches to ‘helping’ children who identify as the opposite sex — not only through social transition, but also through the administering of hormones, and ultimately surgery. These medical practices are finally beginning to be recognised as morally and legally wrong. The recent case of Keira Bell, and the CQC report into the Portman and Tavistock NHS Trust Gender Identity Development Service, have highlighted serious ethical and professional failings in the treatment of young people referred for gender identity related services.

It is essential to recognise, therefore, that a broadly defined ban on conversion therapy, which includes gender identity and expression, could make it a criminal offence to offer therapy aimed at avoiding such drastic and damaging interventions. In a field already crying out for an ethical overhaul — recognising the urgent need to redress ideological capture — such a ban could have catastrophic effects for practitioners wishing to avert intrusive treatments and help young people to feel at ease with their bodies.

As well as the serious risk of furthering gender ideology in this damaging way, a ban on ‘conversion therapy’ that is sufficiently expansive as to include non-medical contexts — such as religious counselling, and other practices that do not purport to be medical ‘therapies’ — would essentially be a form of prohibition of certain forms of speech.

This could affect gay and trans people who wish to live in accordance with certain religious values and principles, and the people they might turn to, such as priests, imams, and other religious leaders and scholars who teach traditional religious sexual and moral codes. Equalities minister Kemi Badenoch alluded to this in her remarks addressing why the government was proceeding with care on any interventions in respect of ‘conversion therapy’.

Most importantly, however, healthcare professions should be supported and encouraged in rooting out practices that are unethical and unsupported by evidence and clinical good practice. This self-evidently includes offering therapy that purports to ‘cure’ people of being gay. Abusive and violent actions by parents, religious figures, or anyone else, are already against the law, and such laws should be enforced.

It is notable that the Bell case revealed that gender treatment centres have been acting unlawfully for years in prescribing puberty blockers without proper consent. Addressing the illegal off-label use of such drugs on young people and children on an experimental basis should be made a priority of government action. Whereas, an expansively-understood ban on therapies and treatments in respect of gender identity would take us in the opposite direction to what is urgently required to protect vulnerable children and young people.

Radical: Despite lockdown, the gender wars rage on. Here’s our round up of the biggest issues of the week.

3 Mar

Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they founded Radical, a campaign for truth and freedom in the gender recognition debate.

With so many stories from the sex and gender debate vying for attention this week, we’ve put together a quick briefing on just a few of them: 

Sex and the Census

Last autumn, we wrote about the battle over the ‘sex question’ in this March’s census. After much obfuscation, the ONS announced in February that its guidance for completing the question ‘what is your sex’ would advise people that they can ‘use the sex recorded on one of your legal documents such as a birth certificate, Gender Recognition Certificate, or passport.’

Now, since it is possible to change the sex marker on documents like passports and driving licences on request, without any formal process, this means in effect that trans people are being told that they do not need to include their biological sex, and can answer with the sex they self-identify as, instead.

Moves towards recording self-identified gender instead of biological sex have been strongly criticised by leading academics in the field. The campaign group Fair Play for Women is bringing a judicial review of the ONS guidance. Remarkably, when it received notice of the legal challenge, the ONS expedited the release of the online census, which means that people are already completing it, making the guidance harder to overturn.

Readers can support the judicial review crowd fund here. Readers might also consider joining the campaign by organisations including the Safe Schools Alliance and Conservatives for Women, to register opposition to the ONS approach, by requesting a paper copy of the census and returning it with a letter asking to have their sex recorded as ‘registered at birth’. 

Maternity leave

Our second dispatch from beyond the looking glass comes from the parliamentary debate on the bill to allow Cabinet ministers to take maternity leave. Following a rebellion in the House of Lords, the Government relented, and will allow the law to refer to ‘mother’ instead of ‘pregnant person’.

The bill had been drafted in ‘gender neutral’ terms, in the mistaken belief that this is what drafting protocols require. In fact, gender-neutral language is only required when it is not necessary to refer to one sex or the other. The Equality Act, for example, is very clear in its references to women in the context of pregnancy discrimination (though it dates from 2010, when clearly much more backward views on gender identity were prevalent!).

It is therefore puzzling that the minister in the Commons, Penny Mordaunt, claimed that using the word ‘woman’ would have caused legal difficulties. Equally misguided were the claims that the change made in the Lords would introduce discrimination against transmen who fall pregnant. It is established in case law that a transman who gives birth is still the mother of the child for legal purposes.

The debate in the House of Lords was refreshingly open and well informed, illustrating by contrast how poor the discourse on this matter is in other forums, where activists pushing misinformation have been able to dominate and silence people who do not feel as able to speak freely as their Lordships. Mordaunt herself used the opportunity at the dispatch box to repeat, without explanation, that ‘transwomen are women and transmen are men’.

Children’s rights

Our third relevant news-story pertains to the appointment of a new Children’s Commissioner for England. The Office of the Children’s Commissioner was established in 2005, in accordance with the Children Act 2004, and following the recommendation of the Victoria Climbié Inquiry, and the previous establishment of similar roles in the other UK nations. The role was extended following the Dunford Review, and in accordance with the Children and Families Act 2014.

Its current focus, according to the office’s website, is to “promote and protect the rights of children, especially the most vulnerable”. It is promising, therefore, to note that the new commissioner, Dame Rachel De Souza, spoke, in her opening message, of the importance of the “sense of adults really taking responsibility for the future of children”. Too often today it feels as if adults in power are purposefully oblivious of the fact that children’s powers of reasoning are in development: that there are decisions they are simply unable to make for themselves.

In the time we have spent at Radical considering matters of sex and gender, we have come across many disturbing matters. But there’s no question that the most disturbing of these relate to what’s been happening to many of the vulnerable children who have been referred to UK professionals for help with gender-related issues — claimedly in the ‘interests’ of these children, according their own ‘wishes’.

As we have reported many times, and recent court cases have documented, the mental-health problems of these children have, too often, been overlooked, and they have been medicalised in ways they simply cannot understand, never mind give consent to. These children have been treated as political footballs, quickly dropped by self-serving ‘gender-identity’ activists — who manipulated them and their parents into seeing these irreversible experimental ‘treatments’ as an exciting nirvana — if they step out of line, as in the case of the increasing numbers of ‘detransitioners’.

These children urgently need a proper protector, who understands what it means to be a child, and why it is so deeply wrong that these children have been let down and harmed in this way. Indeed, this protection is their right — not only under the recent pieces of aforementioned legislation, but fundamentally.

De Souza has a track record as a champion fighting for the highest-standards of education for all: even a Guardian article, focused on criticising De Souza’s links to the Conservative Party, stated that “[e]ven critics acknowledge her success as a headteacher who has improved schools in deprived areas serving disadvantaged children”. 

She also has a keen interest in philosophy and theology. We’re hopeful, therefore, that she will be the protector these vulnerable children so badly require. We also note that her part of her role is “gathering evidence”, so we shall write to her soon, to share our findings. 

Prison policy

Our final item of the week is news of the commencement, yesterday, of the Judicial Review of the Ministry of Justice’s transgender prisoner policy. This review was granted to a female prisoner, and addresses her claim of indirect sex-based discrimination. You can follow the hashtag #prisonJR on Twitter for up-to-date commentary on the case — not least from Fair Play for Women, which is live-tweeting the proceedings. 

Regardless of whether current and upcoming court cases following the emerging trend — and the gender-identity activists continue, finally, to be held to account — proper formal publicity about what’s been going on can only be for the good.