This heretical thought is prompted by the reaction of some politicians to Scotland’s Gender Recognition Reform Bill and the Graham/Bryson case and the recent interview of Stonewall’s new Chair, Iain Anderson by Sky News.
The long-standing position of Labour, the Lib Dems, the Greens and the SNP is to reform the gender recognition process via self-ID while maintaining the Equality Act (“EA”). Stonewall has also long campaigned – since 2015 in fact – for self-ID, the replacement of references to “sex” in the EA with “gender” and the removal of all single and separate sex exemptions in the EA. (1)
Labour has recently said that it will seek a consensus as to how the Gender Recognition Act (“GRA”) should be modernised, while promising there would be “no rolling back” on women’s rights. That women should be grateful and/or relieved about this latter promise is a mark of how little women and their rights are now regarded by the Labour party. How about modernising and strengthening women’s rights not merely keeping them where they were in 2010? No suggestion of that. The position of women and their rights have, in Labour’s view, reached nirvana and cannot be improved on in any way.
What modernisation of the GRA means and why it is needed has not really been explained. More pertinently, exactly how the Equality Act’s provisions are to be maintained – particularly in relation to women’s access to single and separate sex services, associations and exemptions – has never been spelt out. It is taken as given that self-ID has no impact on the EA or can be made to fit easily with it. It is as if clashes of rights cannot possibly arise and therefore no consideration need be given to how to resolve them – let alone explain this. The other possibility is that such politicians take a “Top Trumps” approach to rights, depending on which group is the favoured minority of the day, as if this were the human rights equivalent of “pass the parcel”. While the GRR Bill’s impact on the EA will now be tested in the courts this September as a result of the order made under S.35 of the Scotland Act, recent responses by politicians in favour of reform suggest something potentially more troubling – that after the next election (on the assumption that there will not be a Tory government after it) it could be the EA which will be watered down to fit the demands of others.
Safe Spaces
One recent example is the way those favouring self-ID or, more generally, trans rights talk about “safe spaces” for women, as if safety is the only concern women have. Let’s leave aside for a moment the wooliness of this term, especially when applied to public spaces. This approach misreads both what women want and need and what they are entitled to under the ECHR and the EA. (2) It is, of course, understandable that there has been much talk of women’s safety. This could hardly be otherwise when a male double rapist claiming to be a woman is put in a women’s jail then rapidly moved to a male one following an outcry. (This aside, there has been much to enjoy in the linguistic contortions adopted to avoid describing a male rapist as male or explaining why someone identifying as a woman should be in a male prison, contrary to the logic of the reform and the Scottish Prison Service’s long-standing policy). Safety has also been one of the key issues raised by women when objecting to the GRR Bill’s provisions. No wonder Lord Falconer mentioned “safe spaces” in his evidence to the Commons Women and Equalities Select Committee, doubtless believing he was addressing those concerns. (3)
More recently still, Iain Anderson, Chair of Stonewall, in an interview with Beth Rigby of Sky News, stated that the Equality Act created “safe spaces for women“. It is telling that, when asked about women’s rights he first referred to the GRA and then said that the EA built on that, as if trans rights were the fons and origo of anti-discrimination legislation. This is incorrect. The GRA was in response to a case the UK government lost before the European Court of Human Rights. The EA did not build on it. It was an Act which followed 3 separate government reviews in 2000, 2003 and 2007, bringing together over 116 pieces of separate anti-discrimination legislation over 40 years. Two of the Acts it replaced – the Equal Pay Act and the Sex Discrimination Act – dated back to the 1970’s (1970 and 1975, respectively) .(4)
What does the Equality Act actually say?
But there is no reference to “safe spaces” in the EA. The EA refers to single sex spaces/services or separate sex-based spaces/services. It sets out a range of reasons when these can lawfully be provided, subject to the tests in the Act. Safety is not the only reason. Effectiveness, practicality, location (e.g., part of a hospital or place where people require special care, supervision or attention), reasonable objection and physical contact also matter. Women’s privacy and dignity count. Not just their safety.
This is not – nor should be – surprising. The reasons for the exceptions were to permit the continuance of well-established, valued and necessary social conventions: allowing women privacy during menstruation, permitting those requiring intimate personal care to have it provided by women, accommodating the preferences of religious women and so on. There are good reasons why women of all types and ages may wish to exclude men at certain times or in certain circumstances. Something more than the simple avoidance of sexual assault or the fear of it is necessary for women to live full, dignified and free lives. Why is it so hard for politicians, particularly those on the left, to understand this now in 2023 when they could do so in 2010? At any event, in 2010, the EA recognised and sought to give this social reality legal expression.
The Goodwin Case
This case before the ECHR case led to the Gender Recognition Act. It was brought by Christine Goodwin, a post-operative transsexual, against the UK government under Articles 8 (right to respect for private and family life) and 12 (right to marry).
The Court recognised the need to ensure the alleviation of the harm caused by the:
“conflict between social reality and law… which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.” It emphasised the importance of ensuring that persons are entitled to “physical and moral security” and protection of “the personal sphere of each individual”. It stated “the very essence of the Convention is respect for human dignity and human freedom” (emphasis added).
The case was about the rights of trans people. But these principles and approach apply to everyone.
So women, too, are entitled not to be put in a position of “vulnerability”, “humiliation” or “anxiety”. They too are entitled to “physical and moral security” and the protection of their “personal sphere”. They too are entitled to “respect for [their] human dignity”. This means something more, considerably more, than not being raped or having a safe space to hide from attackers.
An unnecessary worry?
Why did Lord Falconer use the “safe spaces” term? He is an experienced and distinguished lawyer, a former Lord Chancellor, Secretary of State for Justice and Shadow Attorney-General. He undoubtedly has access to expert legal advice on the EA should he want it.
The Labour leader, Keir Starmer, has also used this phrase. He too is an experienced lawyer, with a human rights practice before becoming CPS Head. He will be familiar, one assumes, with the ECHR and doubtless understands that the Equality Act needs to be interpreted in accordance with its provisions. When asked in interviews whether women can have penises he has been at pains to give legally correct answers based on the fact that a male with a Gender Recognition Certificate (“GRC“) has the legal gender of a woman without any requirement for surgery and, therefore, a “woman” in law can have a penis. He has done so even though he knows that what his interviewers and many voters are interested in is not the legal position with regard to those with a GRC but the real life implications of men with intact male bodies calling themselves “women“. While there is something admirable about his determination to give the legally correct answer, it does rather show up his failure to be equally legally accurate when it comes to what the EA says about single sex exemptions. It raises two questions:
- Why can’t he be equally legally accurate when it comes to issues concerning women?
- Or is it that he doesn’t want to be?
Steve Reed, Shadow Secretary of State for Justice, has also used this “safe spaces” phrase.
Why? Were they all misspeaking? Is it a convenient shorthand? If “safe space” is another way of saying “single sex space”, why use it at all? “Single sex space” does what it says on the tin. No need for an alternative.
Or are they signalling the ultimate destination? Would it be wrong to worry that this suggests a desire to water down the protections and rights that women have under the EA?
What’s wrong with safe spaces, anyway?
The use of the non-existent term “safe space” is a way of limiting women’s objections only to those of safety, as if their psychological and bodily privacy and dignity are irrelevant or unjustified. It assumes that long established social conventions – separation of men and women when it comes to intimate situations, more recent social changes, particularly the need for – and inviolability of – women’s boundaries (“No means No”) – and, above all, respect for women’s decisions to have boundaries – are unnecessary and wrong. It suggests that the need for dignity, privacy, modesty, for not having unwanted physical contact are unjustified and illegitimate. It appears to want to impose a new social convention, limiting the reasons for having female only spaces, thus making it harder for some women to live freely in the public sphere, making others feel anxious or humiliated or creating the risk of them feeling so.
It feels like a more sophisticated way of presenting what David Lammy rather clumsily said in 2021 when he claimed that “dinosaurs exist in our own party” and want to “hoard rights”. Lammy’s misunderstanding of what human rights mean and his implied suggestion that women should give up the rights they have to others rightly got criticised. But limiting women’s reasons for wanting single sex spaces only to safety achieves much the same end.
Ed Davey, Lib Dem leader, has gone further, saying on the Today programme on 17 September 2021 in response to a question –
“On safe spaces for women, do you believe there should be places in our society where biological males can’t go?”
“No”
The irony of saying this on the very day that a report came out urging the police to take violence against women more seriously seems to have escaped him. Davey was also interviewed by Andrew Marr on 19 September 2021. His responses in both interviews on the topic of women’s rights might charitably be described as confused.
Sex matters. Consent matters.
One irony of using the term “safe spaces” is that it focuses attention on why these are needed. They are needed because of the risk and reality of male violence against women and girls. Not just violence in the abstract. But violence committed by males. The second irony is that it also highlights the reluctance of politicians to confront what this means for their desired policy. It is a reluctance to accept that it is a person’s sex (not their self-described gender nor indeed any other sort of self-description) which is one of the most important predictors of the risk they pose.
It is men and their behaviour which explain why women need be concerned for their safety. It is the fact that they are of a different sex to women (no matter what the men’s self-description may be) that leads to many women not wishing to be in intimate situations with them. It is the desire to be in control of when a woman wants to be intimate with a man that matters. That is what human freedom and dignity for women mean. Not simply giving consent to something done to her but being able to decide for herself which men, if any, she wishes to associate with and to what extent.
That risk and the freedom to decide do not disappear simply because a man has decided he is – or feels himself to be – a woman. That would require evidence – rather than assertion – that such men are less of a risk or no risk at all purely as a result of their feelings. Simply because a man is dysphoric or describes himself as “trans” does not, ipso facto, change his behaviours, physical desires, predilections or physical strength. Nor, in the majority of cases, his physical body.
Nor, critically, do they change how a woman may feel about being made to share a space with such men against her wishes. An individual man may not be a risk but simply because he has a male body a woman may not want to have him present (for instance, when undressing). Just because he may want it does not make it a “right”. Just because he wants it (for whatever reason) does not mean that she must agree. Isn’t this the essence of consent? Insisting that a woman must agree (however this is arrived at – “TWAW”, for instance) – or refusing her the choice is seeking to control what a woman is allowed to feel, do and express, how she can live her life. How is this consistent with her right to human dignity?
It is odd that politicians, normally so vociferous when it comes to human rights issues, seem so reluctant to say clearly that women have human rights, sex is a protected characteristic under the EA, no one characteristic takes precedence over any other and the very same rights allowing Christine Goodwin to have her identity recognised in law also apply to women.
Why the reluctance? Why the slippery language? Or do we now have politicians believing in a de facto hierarchy of rights with women’s rights placed below those of others?
Notes
(1) It is notable in the interview with Iain Anderson that he is unable to say clearly either that he is in favour of single sex spaces for women or that Stonewall has changed its position from 2015.
(2) See https://twitter.com/legalfeminist/status/1627259693717504000?s=61&ToDxYWLz51NZFGNnvbeXxA. An excellent guide to what the Equality Act actually says can be found here – https://twitter.com/michaelpforan/status/1627587902917210112?s=61&t=y9navpe8nSY0e2WvRktSdw.
(3) https://committees/parliament.uk/oralevidence/12639/html
(4) It is worth noting that in his interview Iain Anderson also misdescribes the GRA stating that it allows people who are “trans” to change gender. This is not correct. The GRA imposes certain conditions before a Gender Recognition Certificate can be granted, the most important of which is that the person must have or have had gender dysphoria, for which certain prescribed evidence must be provided – see here. He also says that a change of gender allows a person to access spaces made for the opposite sex. This too is incorrect. The EA allows a man who falls within the definition of “gender reassignment” to be kept out of a woman-only space on the basis of his sex which has not changed (subject to certain tests).
