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: 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 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: 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.

Radical: Cherry and the SNP. Gender ideology is being used as a proxy for control of the party.

17 Feb

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

From the sacking of Joanna Cherry from their Westminster front bench, to the astonishing legal and political battles surrounding Alex Salmond, SNP infighting has been making headlines all round. From a Radical point of view, this has caught our attention, because gender ideology is serving both as a cause of splits in the party, and a battleground on which a proxy war for its control is arguably being fought.

You’ve probably noticed that the Scottish government has been pushing ahead with reforms to the Scottish Gender Recognition Act — reforms that would enable people to change their legal sex on the basis of a personal declaration, with no need for any diagnosis of gender dysphoria or other external validation. Yes, this would entail a seismic policy shift to what’s generally referred to as “self-ID”, and which the UK government recently decided not to pursue.

This topic been causing disagreements within the SNP for some years, with senior women including Cherry and finance minister Kate Forbes having expressed their opposition to the introduction of self-ID. Then, at the start of February, Cherry was sacked from her position as SNP spokesperson for Justice and Home Affairs. This followed a high profile and acrimonious row with fellow SNP MP Kirsty Blackman, and the SNP LGBT group “Out for Independence”, which involved allegations of transphobia and antisemitism.

The row was triggered by Cherry’s support for Sarah Phillimore, a barrister who was suspended from Twitter for expressing gender critical views. Phillimore has commenced legal proceedings against Blackman for defamation, and, in an extraordinary twist, another SNP front bencher was sacked after donating to Phillimore’s crowd funder for legal expenses.

It’s crucial to note that this ongoing debate over sex and gender is closely linked to the hate crime laws also being pushed by the Scottish government. The Hate Crime and Public Order (Scotland) Bill currently progressing through the Scottish Parliament would create a new offence of “stirring up hatred”, the scope of which would include relevant incidents related to the protected characteristic of “transgender identity”.

This had led to concerns that it might be the case that, with the passing of the bill, expressing opposition to gender recognition laws, or simply expressing the view that human beings cannot change biological sex, would become criminalised, or that freedom of expression related to these matters would at least become seriously curtailed, owing to people’s fear of falling foul of the new offence.

An amendment to the bill, intended to protect free speech in the “discussion or criticism” of transgender identity, appears to have provoked an “exodus” of young SNP activists from the party. And this, in turn, led to Sturgeon making a speech, in which she firmly took the side of the trans activists, and declared an aim of zero tolerance for transphobia within the party.

This response to the free speech amendment seems to validate the concerns of critics of the bill. After all, as we have argued here many times, the introduction of self-ID is not unequivocally in the interests of trans people: just look at the healthcare risks trans people will face if census-data collectors continue down the self-ID route.

It is absolutely essential for the purposes of proper healthcare resource allocation that there are reliable national statistics, for instance, on the number of people who need access to regular cervical smear tests, or information about testicular cancer screening. It is in nobody’s interests for the simple recognition of biological facts to become illegal — and to equate such recognition with hatred is to diminish the serious genuine struggles trans people often face.

Now, since Cherry is firmly on the “gender-critical” side of the debate — the side, that is, that believes in biological sex, and the societal importance of recognising truths about it — her sacking could easily be seen as a related power play by Sturgeon.

Polling suggests that the removal of Cherry from the front bench has the support of a majority of SNP members. Moreover, Cherry is also associated with Salmond. And the Scottish Parliament’s ongoing inquiry into Sturgeon’s behaviour in connection with the complaints against Salmond — and the eventual criminal proceedings that arose from these complaints — could conceivably result in a finding that Sturgeon violated the ministerial code, and would therefore be expected to resign.

Shoring up her position with party members on a cause that is a priority for many of them will surely help, if Sturgeon is forced to fight to retain the position of first minister and party leader. And SNP members and voters generally support gender-recognitions reforms, even if these are not widely supported by Scottish voters as a whole (indeed, polls suggest that reform of the Gender Recognition Act is of low salience, and only supported by 37 per cent of voters in Scotland).

Now, playing to the party base in times of trouble is, of course, nothing new in politics. Indeed, for supporters of other parties, it’s tempting to enjoy the schadenfreude of SNP MPs, MSPs, and activists turning their customary sanctimony and high-handedness on to each other.

But don’t forget that this power struggle isn’t simply limited to arguments about sex and gender. It carries with it serious threats to free speech and democratic accountability, and reflects deep structural problems with the devolution settlement in Scotland.

Sturgeon may be happy to instrumentalise the interests of trans people and women alike — for it is women who will suffer most at the introduction of self-ID — to try to hold on to her power over what increasingly often seems like a one-party state. But this isn’t just wrong in itself: it likely won’t end happily for anyone.

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.

Radical: It’s time the Women and Equalities Committee was replaced

10 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 column on trans, sex and gender issues.

We need to talk about the Women and Equalities Committee. Just take its name, for a start! The ‘women’ part incites ire both from those who find it patronising (“we’re 50 per cent of the population!”), and those who find it exclusionary (“what about men?”, “what about trans men?”, “why isn’t there a BAME committee, then?”). Whereas the ‘equalities’ part is symptomatic of the confused nature of state discussion of such matters: why the plural? If ‘equality’ is good enough for the Universal Declaration of Human Rights, and the Equality Act…

Parliament.uk lists 133 current parliamentary committees, the members of which are MPs and Lords (some only have MPs, some only Lords, and some both). Some are ‘general committees’ (focused on scrutinising legislation), some are ‘select committees’ (focused on the work of particular government departments, etc), and three are ‘grand committees’ (focused on devolved matters). Unsurprisingly, these committees cover a vast range of topics — from Public Administration and Constitutional Affairs, to Fire Safety, to Pensions. 

The Women and Equalities Committee (WESC) is a select committee, set up in 2015 to scrutinise the work of the Government Equalities Office, on the recommendation of the All Party Parliamentary Group on Women in Parliament. It’s worth noting the involvement of this APPG. After all, the GEO focuses on many other ‘equalities issues’ aside from women; sex is only one of the Equality Act’s ‘protected characteristics’. Anyway, on this approach, aren’t women included in ‘equalities’, already? Isn’t the WESC a bit like a Mars Bars and Chocolate Bars Committee?

There’s more to be said about the foregrounding of the term ‘women’, here. But, beyond specific frustration at perceived condescension or exclusion, there’s a longstanding general debate about the state’s involvement in such matters. This ranges from the claim that the state does nowhere near enough to further the life chances of people from oppressed groups, to the claim that the state shouldn’t be involved in these matters at all. Many argue, for instance, that such involvement can be divisive and counterproductive, and represents serious overreach. And that seems a convincing argument to us at Radical, with regards to matters such as state-enforced positive discrimination. 

However, it also seems clear that there are certain such matters that do require state involvement. Indeed, in writing this regular column, we hope to remind Conservatives of this, in relation to the way in which, so often, the interests of women have been forsaken amidst the gender-identity lobby’s capture of our institutions.

Beyond this, however, it’s hopefully uncontroversial to emphasise, for instance, that it’s good and right that FGM is illegal, as it has been under UK law since 1985. And also that the state should do a much better job of enforcing this, to protect girls from these mutilations. Then, there’s the decades-long failure of UK institutions, including police forces, to stop large-scale sexual abuse in towns including Rotherham and Rochdale. The state is involved in these matters, and its actions — for good or bad — must be scrutinised.

Again, maybe you believe the state has no role to play in proactively addressing what are typically seen as hot ’equalities’ topics — such as mandating pay gap reporting, or quotas on boards. And those particular policy approaches run very much against our beliefs.

But hopefully you’d agree that equality itself is a crucial societal value, relating to our basic rights as human beings and as consenting members of a shared political society. And that situations in which members of certain sets of people are treated as if they are lacking the fundamental equal status that we all share, can be a matter for the state. And that this can move beyond instances of direct harm. For instance, policy issues like prisoner voting, and asylum seekers’ right to work, relate to equality in this sense.

But does the WESC spend its time addressing these kinds of matters? Is it a champion of girls’ safety? Are its members engaged in considering fundamental questions of equality? Do they work hard to defend their existence by engaging with underlying debates about the role of the state, and which kinds of state intervention can be justified?

Well, if the WESC has made any impact at all, it’s been solely on the question of gender self-ID. Perhaps it was inevitable that a committee with its remit would be susceptible to capture by gender-identity interest groups like Stonewall. It stands to reason that sceptics of the equalities agenda would avoid engaging with such a committee, while lobbyists for each protected characteristic under the Equality Act would see it as a political platform for their cause. And, as the most vocal identity-related cause of recent years has been that of transgender people, the most high-profile inquiry of the WESC was on transgender equality. Therefore, it’s hardly surprising that, only weeks after Liz Truss published the government’s response to its long-running consultation on self-ID, the WESC felt the need to re-litigate the matter, opening its own, second inquiry into reform of the Gender Recognition Act.

This is neither to say that the interests of transgender people are unimportant, nor that the WESC has not produced interesting publications. Its 2016 report on sexual harassment and violence in schools made for sobering reading. Indeed, you might have thought WESC members would’ve reflected again on their earlier findings on the ease with which people should be able to change their legal sex. Their 2016 conclusions included not only the importance of accurate data — currently under serious threat following the capture of the census ‘sex question’.

But also the urgent need to ‘engage with men and boys’ on matters of sexual violence: ‘the focus in [Sex and Relationships Education] has been often based on girls changing their behaviour, rather than addressing the culture that leads some boys and young men to sexually harass and abuse girls and young women’. We hope the WESC pays more attention to such matters in their new inquiry, and recognises that effectively denying the existence of biological sex is not an option for a state institution.

Or maybe we should hope for something else. The WESC has shown itself to have been captured by a single-issue political campaign, and as such is clearly incapable of properly holding the state to account on the important matters within its remit.

The WESC has even shown itself incapable of advocating for the one group specifically named in its title — women — and has focused instead on privileging the interests, at all costs, of people identifying as transgender. Perhaps, therefore, parliament should bring the WESC to an end? Perhaps it should be replaced with a committee charged with scrutinising the way in which the state upholds the equally-held freedoms and rights of all, rather than viewing these matters through the contested post-modern lens of identity politics?

We therefore call on MPs to halt the WESC’s waste of taxpayer-funded state resources, and propose it should be replaced by a Civil Rights and Freedoms Committee, at the earliest opportunity. Focused on questions of equality before the law, instead of the grouping of people by particular identities, this committee could tackle everything from the privileges of citizenship, to the question of economic ‘levelling up’, to the risks of government by decree in the age of Covid-19. These are matters related to the fundamental values of equality and liberty, which can be approached by conservatives and progressives in common cause, without conceding to identity politics at the outset. 

Radical: Gender ideology has penetrated our institutions – and now it’s the census that’s under threat

20 Oct

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 column on trans, sex and gender issues.

If you thought self-ID was off the table, now the Gender Recognition Act battle has been won, you’d better think again. 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 a solely 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. 

Regular readers will know we believe that adults should be free to present themselves however they want (as long as this doesn’t harm others), and that such behaviour shouldn’t prevent anyone from being afforded equal respect. But this doesn’t equate to believing that the way someone presents themselves determines their biological sex — or that anyone should be mandated into accepting that to be the case!

Indeed, the activists pressing for such mandates endanger many people. We’ve charted the risks faced by vulnerable children, pressured into taking life-changing experimental drugs; the risks natal women face when forced to shared their single-sex spaces; and the risks we all face from attacks on societal commitment to truth.

National data collection is also under threat. And without trustworthy societal data, horrible problems go unnoticed, policy solutions go untested, and nobody is held to account. Sadly, one field that’s been heavily occupied by gender-identity activists is national statistics — in particular, they’ve targeted the censuses that are due to take place, soon.

The UK authorities in charge of censuses are the ONS in England and Wales, National Records of Scotland (NRS), and the Northern Ireland Statistics and Research Agency (NISRA). For the upcoming English, Welsh, and Northern Irish censuses in March 2021, and the Scottish census that’s been postponed to March 2022, they’ve confirmed that the wording of the compulsory-to-answer “sex question” will continue to offer only the standard answers “male” and “female”. Controversially, however, accompanying guidance will advise respondents to answer based on their self-declared gender identity.

This has raised serious concerns among social scientists and statisticians. In a letter to The Sunday Times, more than 80 academics noted that the guidance “will effectively transform the sex question into one about gender identity”, and highlighted their concern that “this will undermine data reliability on a key demographic variable”.

In an excellent Woman’s Place webinar on Sunday, one panellist summed up the situation: “How has this happened when everyone who knows about it, disagrees with it?”. Informed by the webinar, and our wider reading, including an important new paper by Dr Jane Clare Jones, here are some answers:

1) UCL’s Professor Alice Sullivan describes how the census has “collected data on sex since its inception in 1801. As a fundamental demographic variable, robust data on the number of male and female citizens is of vital importance to the planning and delivery of public services. Sex is a protected characteristic under the 2010 Equality Act, therefore data on sex is clearly necessary for equalities monitoring”.

Yet, the aforementioned guidance will conflate the provable scientific concept of sex with the contested subjective concept of gender identity. This will make it unclear what’s being measured (violating the most basic principle of questionnaire design), and render the resulting data unreliable.

Now, it could be argued that the number of respondents who’ll answer the question with anything other than their biological sex will be very low, and that, therefore, this is relatively unimportant. But, aside from the principle of the matter, this neglects how most research using census data drills down deep, comparing findings relating to different variables and subgroups in different ways, making accuracy essential at all levels.

Of course the census covers sensitive matters, but regarding none of its other questions is it indicated that the respondent is not expected to give a truthful answer, but that they can instead choose to provide a response that makes them feel better, or that they wish were true.

UK census authorities have an obligation to maintain public trust in national statistical data. This poor guidance puts them in danger of losing their long-held ability to monitor differences between the sexes, and provide foundations for evidence-based policy.  

2) Until recently, the census “sex question” was thought self-explanatory. In 2011, however, guidance was provided advising transsexual and transgender people to respond based on their self-declared gender identity. This wasn’t subject to consultation, but, according to the ONS, was done “at the request of the LGBT community”. This doesn’t mean, however, that self-identified sex should be accepted as a necessary feature of the census. Professor Sullivan describes how: 

“it is not clear how data quality was affected [by the 2011 guidance], but it is likely that few respondents consulted the guidance. The shift to a “digital-first” census in 2021 means that any proposed guidance will be much more visible and accessible, compared to the 2011 census (which was predominantly paper based, with separate online guidance). It is also likely the number of respondents who might seek to answer the sex question in terms of their gender identity will be higher in 2021. Taken together, these factors introduce the potential for significant discontinuity with the 2011 and previous censuses”.   

Moreover, the 2021 census (in England and Wales, and Scotland) is in further danger of undermining the pursuit of good data collection, with the introduction of a voluntary question specifically pertaining to gender identity. This means respondents will first be asked their sex (but told to answer on the basis of their gender identity), and then asked about their gender identity (by reference to sex!).

Given increasing interest in gender identity, especially among young people, and the lack of reliable data on the number of UK trans people, there’s value to this question. However, that’s only if gender identity can be understood separately from sex: conflating these terms helps nobody, not least trans people, who we’re regularly informed are at risk of missing out on screening for medical conditions relating to their natal sex. Yet, gender-identity activists continue to press this dangerous and confusing conflation. 

3) The conflation of biological sex and gender identity — an astonishing failure of the census authorities — is but one example of the powerful institutional capture achieved by activists. Analysis by MBM tracks how the NSR was in regular and close correspondence with Stonewall. And much of the ONS’s output on the topic of the sex question betrays, through the use of tell-tale words and phrases, an uncritical absorption of post-modernist gender ideology.

4) It cannot be overstated how important the census is, not only to good public policy formation, but to good data collection and analysis, in general. A panellist on the Woman’s Place webinar referred to the census as “the mothership”. And anyone who’s ever done any research on any policy matter will be familiar with the use of census data; its methodological approach is, for everyone from academics to pollsters, a lodestar for survey design and so much more. Risking its standards, therefore, is tantamount to destroying a foundation post of our society.

5) The good news, however, is that it’s not too late — yet — to save the census! If you care about public policy, and believe that national statistics should be protected from gender ideology, then you’d better complain now. You’ve still got a small amount of time before the upcoming censuses to write to one or all of the following: the ONSNRSNISRA, your local MP, and the equalities minister, Liz Truss.

The Government and self-ID. Scrapped for now. But the pressure isn’t going away.

24 Sep

Given the enormous amount of news about Coronavirus and Brexit, a contentious matter has gone under the radar in recent months. That is, whether the Government would drop proposed changes to the Gender Recognition Act (GRA) 2004 to allow for “self-ID”; in other words, a person being able to change their legal gender without a doctor’s approval or undertaking other administrative processes.

In 2017, Theresa May announced her government would run a consultation on reforming the GRA, with the expectation that it would allow transgender people to change their birth certificates without a medical diagnosis. Johnson’s Government, on the other hand, has reversed the idea. In April Liz Truss, the Equalities Minister, signalled that the existing checks would stay in place – something she confirmed to Parliament this week, and has received an incredibly polarised response over.

The strength of feeling on GRA is obvious from the fact that 102,000 people responded to the Government’s initial consultation on the subject. It is reported that thirty nine per cent of these came from Stonewall, which advocates for self-ID. 

Proponents of the concept argue that the current processes are intrusive and distressing; these include providing two medical reports (one to show a diagnosis of “gender dysphoria”, and the other to outline details of what treatment has been received), obtaining the consent of a spouse if married, demonstrating that a transgender person has lived in their acquired gender for at least two years, and paying £140. Self-ID would put an end to all this.

Many, particularly women’s rights groups, feel it goes too far, however. While polls routinely show that the public is sympathetic to trans rights, there are concerns about transgender women with male anatomy being able to access female-only facilities, such as prisons and changing rooms. From women’s sport, to census data collection, self-ID would have enormous practical and legal implications.

The Government clearly wants to achieve a compromise on the matter. Although ministers haven’t carried forward self-ID, they want to speed up the process for those wanting to change gender. Truss, for instance, said that the Government would be “opening at least three new gender clinics this year” to reduce waiting lists; that the process would be “kinder and more straightforward”, mainly by moving online, and that the fee would be reduced to a “nominal” amount.

Is the debate closed, though? While it looked that way this week, the Government will still find itself under enormous pressure to reform the GRA – not only from activist groups.

For starters, there’s its own MPs. Crispin Blunt has been one of the most vocal about the decision. He said it had caused “crushing disappointment”, and accused Truss of not proposing legislation – so as to avoid it being voted down. “Does she appreciate that her statement does not command a majority in this House?” Were his words.

There’s also the fact that Scotland is close to implementing self-ID, as Rebecca Lowe and Victoria Hewson recently pointed out in their column for ConHome. This will either exacerbate demands on Johnson’s Government to change direction – or give it evidence of why self-ID is practically untenable.

Lastly, one of the big surprises this year was that Google UK attacked Truss over self-ID. On June 18, the company Tweeted a petition to its followers (which now stand at 190,000), inviting them to sign a petition asking her to reform the GRA. “Don’t roll back on trans dignity”, it read, along with the hashtag: #TRUSSTME.

It emphasised a sinister, broader point, which is the capacity for tech giants to try and influence political policy (something troubling considering the Government’s increasing reliance on them – not least to help get out Britain’s contact tracing app).

With all that being said, Truss was robust in her response to Blunt’s criticisms, and no doubt many people will have been impressed with her actions.

But with Conservatives having u-turned on the matter, it’s a reminder that shifts in leadership can easily change the direction of this battle. The Government has got its way for now, but the debate is far from over.

Radical: Trans. Self-ID proposals have been stopped for now. But the struggle for civil rights and truth continues.

22 Sep

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

On September 20, The Sunday Times reported that gender “self-ID” proposals originally put forward by the May government in 2018 will not be taken forward. We’ve written here many times about this topic, but it’s worth a quick reminder of the context, before we address this momentous news.

Since the introduction of the Gender Recognition Act (GRA) in 2004, people meeting certain conditions have been able to obtain a Gender Recognition Certificate (GRC). A GRC legally recognises someone’s change of gender, and allows them to have their sex on their birth certificate changed to match this gender change, for legal purposes.

Under the terms of the act, obtaining a GRC requires a medical diagnosis of gender dysphoria, and evidence of having lived in one’s “acquired gender” for two years. It is worth noting here the difference afforded to sex and gender within the process. For instance, it is often stated that a GRC “changes someone’s gender” on their birth certificate, yet this is clearly wrong, as gender is not recorded on a birth certificate – rather, sex is.

The terms “sex” and “gender” are often used interchangeably in conversation, and various relevant pieces of legislations are lax on their clarity of use of these terms. But, as the Government’s GRA consultation document notes, “gender” technically relates to “socially constructed characteristics” associated with societal notions of masculinity and femininity, whereas “sex” relates to the biological characteristics that determine whether someone is male or female. Regardless of the terms used, this distinction is crucial for many reasons.

In 2018, Penny Mordaunt, the then Minister for Women and Equalities, launched a consultation – as referred to above – on the reform of the GRA. The aim of this consultation was to determine “how best Government might make the existing process under the [act] a better service for those trans and non-binary people who wish to use it”. The consultation closed in October of 2018, and although the Government Equalities Office has stated that it received more than 100,000 responses, no responses have ever been published by the Government.

The most notable reforms discussed in the consultation were proposals that would entail that, to obtain a GRC, a person would no longer require a diagnosis of dysphoria, or need to prove that they had been living in their acquired gender. Rather, someone would be able to obtain a GRC, and change their sex for legal purposes, simply by making a statutory declaration of their intention live in the opposite gender.

This is already the case in a number of countries, cited as examples in the consultation document, and is informally known as “self-identification” or “self-ID”. These proposals for change were strongly supported by trans activist campaigners (including those within the Conservative Party), but were strongly opposed by women’s groups and people concerned about myriad practical and legal implications that seemed to have gone unnoticed in the consultation.

We have discussed many of these implications in our columns, ranging from concerns about prison safety to census data collection. We strongly believe that people who choose to act in ways traditionally associated with membership of the opposite biological sex should be treated just as respectfully as anyone else, all other things being equal.

But we also believe that acknowledging the importance of the right to free expression does not equate to believing that the law should mandate that biological men must be treated as women, or biological women as men – on their demand. The consequences of such an approach would not only include the violation of natal women’s rights to security and privacy, but also the undermining of biological truth. 

This week, the Government seems finally to have clarified its position on self-ID. Although Liz Truss, the current Minister for Women and Equalities, had stated back in April that it was her intention to “[maintain] the proper checks and balances in the system”, the announcement confirming that the Government would not be going forward with self-ID did not come before the summer break, as she had implied.

In the meantime, there was, unsurprisingly, a new flurry of campaigning for the change. And opponents of reform began to fear that the powerful influence of organisations like Stonewall (whose diversity scheme most government departments subscribe to) would prevail, and that the proposed changes would be brought forward, after all.

It comes as a great relief, therefore, to learn that, aside from dropping the £140 fee, the current process will remain unchanged. A government spokesperson was quoted by The Sunday Times as saying, ”We think that the current legislation, which supports people’s rights to change their sex, is sufficient”.

This does not mean that our struggle for civil rights and truth is over, however. The battle over self-ID has shone a light on the state of law and policy concerning sex and gender. In this column, we have written many times about the confusion and misinformation that has been propagated by public authorities, often on the advice of campaigners like Stonewall.

Illegal guidance by bodies ranging from local authorities to the Crown Prosecution Service has been successfully challenged by women and children who refused to accept that girls and boys should no longer be separated in toilets, changing rooms, and dormitories.

Legal actions in respect of medical intervention on children and young people are ongoing; the NHS has already changed its official position on the “reversibility” of puberty blockers, to recognise that these powerful drugs have effects on young people that are not reversible. A challenge to the lawfulness of guidance issued by the body tasked with overseeing and enforcing equalities legislation, the Equality and Human Rights Commission (EHRC), is under way

It is particularly notable, therefore, that the reaction of Stonewall to the news that the GRA reforms would not proceed was to state an incorrect interpretation of the Equality Act. This was rightly described by Jackie Doyle-Price, the Conservative MP, as a “wilful misrepresentation” from a body that purports to advise public- and private-sector organisations on how to comply with equalities laws.

Now that the law on gender recognition looks to be stable again, the Government Equalities Office and the EHRC should urgently attend to clarifying guidance on gender reassignment and sex under the Equality Act. Police and civil-service leadership should consider whether such close involvement with politically-driven organisations such as Stonewall and Gendered Intelligence is consistent with impartiality. 

It is clear that the Gender Recognition Act is not a good law. Its key provisions are badly drafted, mixing the terms “sex” and “gender” without defining either. This both reflects and contributes to widespread confusion, which has been exploited to pursue outcomes that the MPs and peers who voted for the act in 2004 had no conception of – such as the right for male-bodied people who identify as women to use female changing rooms, be housed in female prisons, and be recorded as female in crime statistics and census data. 

The GRA could certainly still be improved – but at least it now seems that it is not going to be made worse by the introduction of self-ID. Equivalent reform is still being pursued in Scotland, however. In combination with the Scottish hate speech bill, this would be dangerously authoritarian, and Conservatives across the UK should hope that opposition parties and groups will succeed in their campaigns against both pieces of legislation.