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.

Radical: This new inquiry into the Gender Recognition Act reform affects us all – and there are just days left to have your say

24 Nov

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 this fortnightly column on trans, sex and gender issues, and are co-authors of the article below.

Our aim for this coming week is to finalise the Radical submission to the Women and Equalities Committee’s new inquiry into Gender Recognition Act reform. You may have read our last column, in which we called for the urgent replacement of this committee (the “WESC”), on the grounds that it has clearly been captured by a single-issue political campaign, and as such is incapable of properly holding the state to account on the important matters within its remit.

We proposed that it should be replaced by a Civil Rights and Freedoms Committee, which would focus on fundamental questions of equality before the law — tackling everything from citizenship to levelling up — instead of the grouping of people by particular identities. We stand by this proposal, and will be writing more in the coming weeks to strengthen our case.

Nevertheless, like many who are frustrated by the WESC — in general, and regarding its revisiting of GRA reform, in particular — we feel it’s important to make a submission to this inquiry. This is in large part because these inquiries often risk suffering from a form of self-selection bias, in which many of those submitting evidence hold extremely similar views to those of the people who’ve set up the inquiry.

This is especially so when a committee has been captured by a political movement; it is a clearly bad state of affairs for many reasons, mostly relating to the crucial role that proper democratic deliberation should play within a free society. Being a member of a democracy shouldn’t just mean having the opportunity to vote every few years: being able to inform decision-making isn’t just for (every fourth) Christmas. So we hope our submission will, at least, help to provide some much-needed balance.

So, here we are thinking about GRA reform once again. Regular readers of this column will have read our thoughts on this topic many times, culminating in our relief at the momentous news, back in September, that Liz Truss had confirmed that the “self-ID” proposals originally put forward by the May government in 2018 would not be taken forward.

We were pleased by this news because, while we strongly believe that people should be free to present themselves in line with whatever “gender” stereotypes they wish — as long as doing so causes no harm to others — this should not entail making the determination of one’s legal sex a matter of personal preference.

As we have explained over the past year in these columns, bringing in self-ID would undermine the important concept of scientific truth, do away with single-sex services and spaces, and put women at serious risk of harm.

We have also been keen to emphasise, however, the way in which the battle over self-ID shone a light on the generally dismal state of law and policy concerning sex and gender. We have long been calling for the Government Equalities Office and the EHRC to clarify guidance on gender reassignment and sex under the Equality Act.

A fortnight ago, we explained our frustration at the WESC’s ongoing existence in its current form, and its revisiting of the topic of GRA reform. The WESC addressed this topic in detail back in 2016, and doing so again seems, at best, a poor use of taxpayer resources. But, let’s turn to the inquiry. Its terms of reference are available here, and include such questions as:

  • Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years?
  • Should the requirement for a diagnosis of gender dysphoria be removed?
  • What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally?
  • Why is the number of people applying for a Gender Recognition Certificate so low compared to the number who identify as transgender?
  • Are the Equality Act provisions for single/separate sex spaces and facilities clear and useable? If not, do we need reform or further guidance?

Now, evidently some of these questions simply represent a re-run of the WESC’s 2015-16 inquiry, which ended up calling for reform of the GRA. The questions about the clarity and usefulness of guidance on the Equality Act (EA) are welcome, however. It is clear that misconceptions and misunderstandings of the EA are widespread, and are often encouraged by gender-identity-activist organisations and public-sector bodies that have been captured by that lobby.

Even Caroline Nokes, the chair of the WESC, shows a lamentably bad understanding of the EA. Last week, in response to a question posed during a webinar hosted by the Tory Reform Group, she exclaimed that the EA has no relevance to men. Can it really be the case that the chair of the WESC doesn’t understand that the EA protects people from discrimination on the grounds of sex, whether their sex is male or female?

Nokes also showed a shocking disregard for the risks arising from housing male prisoners who identify as female in women’s prisons — flippantly (and wrongly) asserting that such concerns for the safety of women prisoners stem from only one, isolated, case (presumably, referring to this one). And judging all trans women prisoners by reference to a single case of a male rapist sent to a women’s prison was, Nokes claimed, like judging all doctors by reference to Harold Shipman.

That a self-declared equalities champion, and chair of the Women and Equalities Committee (note the foregrounding of the term “women”, here) is seemingly unaware that there are currently at least 139 trans-identifying male prisoners housed in women’s prisons — many of whom are dangerous sex offenders — is troubling.

Moreover, the Prison Service’s policy on trans prisoners is currently subject to judicial review, on the basis that it is unfair to the vulnerable women who are incarcerated alongside male-born criminals. If someone in Nokes’ position has such a poor understanding of law and policy in the field — and spreads incorrect and incomplete information, so casually — then what chance do public servants and private business people have?

The prospect raised in the WESC consultation of new legal protections for gender-fluid and non-binary people, which would extend the committee’s own remit in that respect, is concerning, therefore, not least given that its members clearly already struggle with their brief as it stands.

Other moments in the Nokes webinar were similarly disturbing. From her general question-evading, to the moralising intimation that submissions focusing on single-sex risk were ‘ignorant’ and ‘offensive’, to the callous way in which she spoke of foreign-born homeless people as a ‘complex cohort’, it was often quite hard to watch. We fear this underlines the way in which the WESC has been captured. If Nokes is simply not up to the job, then that’s one thing. If she is seeking to misrepresent law, then that is quite another.

Either way, the inquiry’s questions need answers. And these answers should come from a wide range of interested parties: these are matters that affect us all. You’ve got until Friday to have your say.

Caroline Nokes: Spare a thought for women. Male ministers have forgotten we exist in their lockdown easing plans.

30 Jun

Caroline Nokes is Member of Parliament for Romsey and Southampton North. 

Covid-19 has taught us many things about the importance of physical and mental wellbeing. We discovered (if we actually needed to be told) that your chances of recovery were greatly improved by being physically fit and in the normal weight range for your height.

We found out that mental resilience was important to cope with long periods of relative isolation, and social contact carried out mainly by Zoom. We were told very firmly that an hour of exercise should be part of our daily routine, and pretty much the only way to escape the house legitimately.

But for women in particular the importance of wellbeing seems to have gone well and truly out of the window as lockdown is relaxed.

Why oh why have we seen the urge to get football back, support for golf and fishing, but a lack of recognition that individual pilates studios can operate in a safe socially-distanced way, rigorously cleaned between clients?

Barbers have been allowed to return from July 4 because guess what – men with hair need it cut. They tend not to think of a pedicure before they brave a pair of sandals, although perhaps the world would be a better place if they did. Dare I say the great gender divide is writ large through all this?

Before anyone gets excited that women enjoy football and men do pilates can we please just look at the stats? Football audiences are (according to 2016 statistics) 67 per cent male and don’t even get me started on the failure of the leading proponents of restarting football to mention the women’s game.

Pilates and yoga (yes I know they are not the same thing) have a client base that is predominantly women and in the region of 80 per cent of yoga instructors are women. These are female-led businesses, employing women, supporting the physical and mental wellbeing of women, and still they are given no clue as to when the end of lockdown will be in sight.

Could it be that the decisions are still being driven by men, for men, ignoring the voices of women round the Cabinet table, precious few of them though there are? I have hassled ministers on this subject, and they tell me they have been pressing the point that relaxation has looked more pro-men than women, but it looks like the message isn’t getting through.

I will declare an interest. Since I first adopted Grapefruit Sparkle as a suitably inoffensive nail colour for an election campaign in 2015, I have been a Shellac addict. The three weekly trip to Unique Nails is one of life’s little pleasures, an hour out, sitting with constituents, chatting, laughing, drinking tea.

It is good for the soul, a chance to recharge and chill out. And for many of the customers it is their chance to not have to bend to get their toenails trimmed, it is a boost to their mood, that can last for a full three weeks until it is time for a change.

And it is a fairly harmless change to go from Waterpark to Tartan Punk in an hour. Natural nails have done very little for my mood since a nice chap from Goldman Sachs told me: “you could go far if only you opted for a neutral nail, perhaps a nice peach.”

At school I was described as a “non-participant” in sport – I hated it, and it has taken decades to find the activities I can tolerate to keep my weight partially under control. Walking the dog is a great way, but nothing is as effective as the individual work-out rooms in a personal training studio – where it is perfectly possible for those of us who do not like to be seen in lycra to exercise in isolation and then have the place cleaned for the next victim.

I am not suggesting it is only women who do not like to exercise in vast gyms, there are men with similar phobias, but what I cannot get over is the lack of recognition that a one-to-one session in a studio is not the same as toddling off to your local treadmill factory.

The Pilates studio owners of Romsey and Southampton North are deeply frustrated at the apparent inability to draw the distinction between their carefully controlled environments and much larger facilities where, to be blunt, there is a lot of sweat in the atmosphere.

I know I get criticised for being obsessed about women – it goes hand in hand with the job description – but I cannot help but feel this relaxation has forgotten we exist. Or just assumed that women will be happy to stay home and do the childcare and home schooling, because the sectors they work in are last to be let out of lockdown, while their husbands go back to work, resume their lives and celebrate by having a pint with their mates.

(And yes I do know women drink beer too, but there is a gender pint gap, with only one in six women drinking beer each week compared to half of men.)

Crucially, women want their careers back and they want their children in school or nursery. Of course home working has been great for some, but much harder if you are also juggling childcare and impossible if your work requires you to be physically present, like in retail, hairdressing, hospitality.

These are sectors where employees are largely women, and which are now opening up while childcare providers are still struggling to open fully – with reduced numbers due to social distancing requirements. It is a massive problem, which I worry has still not been fully recognised or addressed.

Perhaps if the PM needed to sort the childcare, get his nails done and his legs waxed it might be different. But it does seem that the Health Secretary, the Chancellor, the Business Secretary and the Secretary of State for Sport and Culture, who all have a very obvious thing in common, have overlooked the need to help their female constituents get out of lockdown on a par with their male ones.

Am I going to have to turn up to work with hairy legs to persuade them that women’s wellbeing matters?