Sir Keir Starmer must be sick of being asked the “what is a woman” question. But in light of his statement that a woman is an “adult female”, Anneliese Dodds saying that a medical diagnosis will still be required in its reform of the Gender Recognition Act (“GRA”) and Wes Streeting’s regret over the treatment of fellow MP, Rosie Duffield, on this issue, here are some questions which now need answering by Labour.
Why has Labour changed its views? How far, in fact, has it done so? What are the details of their revised policy? Is this shift reculer pour mieux sauter? Or merely a tactical change – a scraping of electoral barnacles off the boat in the run up to a general election? Or a fundamental shift in its approach?
It may seem churlish to ask such questions given what appears to be a welcome change. But the “no debate” approach has lasted too long, with disastrous consequences. Labour’s slipperiness and dismissal of women’s concerns over a long period and closeness to pro-self-ID lobbyists is reason enough to be mistrustful. It still takes as a given that the GRA requires reform. Does it? The process of getting a Gender Recognition Certificate (“GRC”) is not onerous and oppressive, no more so than the process of getting a passport, say. What is difficult is the process of getting a diagnosis of gender dysphoria. Making it easier to get the former to get around the difficulties of the latter is not a solution to the latter. It is a way of sidestepping it and can, if not well thought through, lead to self-ID by the back door and/or the same adverse consequences for women’s rights.
Some questions:
Scotland
1. Will the decision not to proceed with gender self-ID stand even if the SNP wins its challenge to the S.35 Order preventing the SNP’s Gender Recognition Reform (Scotland) Bill from becoming law?
This matters because it appears to be the difficulties in Scotland which have prompted the change of heart. If the SNP wins its challenge, the basis on which it does so also matters. It could win on the grounds that the Bill does not impinge on matters reserved for Westminster under the Scotland Act i.e. it is intra vires. If so, that says nothing about the substance of the Bill. Or it could win on the grounds that there are no reasonable grounds for Westminster to believe that the Bill has adverse effects on the laws applying to equal opportunities in the rest of the UK. Regardless of the grounds, it is not hard to imagine Labour coming under pressure to back self-ID if the SNP wins its case and is able to implement it in Scotland. If it does, Labour would then have the added issue of deciding how to treat Scottish GRCs in the rest of the UK.
Minority government
2. If the revised policy will stand, will Labour confirm that it will not abandon this policy should it require the support of other parties after the next election?
The Equality Act
3. Will Labour agree to clarify that “sex” in the Equality Act (“EA”) means only biological sex and for all purposes? And that it won’t be replaced by “gender“?
It is not clear whether Labour accepts that, regardless of whether someone has a GRC or not, the EA does permit (in specified circumstances) discrimination against people falling within the gender reassignment category on the grounds of their sex. The Haldane judgment in Scotland has cast some doubt on this. Without clarity on this issue, there is a risk that “woman” ends up including men with a GRC changing their legal gender to “woman“.
4. Will Labour confirm that it will ensure that:
- ALL the existing exceptions for single and separate sex spaces and single sex associations in the EA will continue; and
- Be permitted for ALL the reasons currently permitted?
5. In particular, will Labour confirm that service providers can continue to exclude those with the protected characteristic of “gender reassignment“, including those with a GRC, on the grounds of sex for all the reasons currently permitted under the EA?
Anneliese Dodds has said in her recent Guardian article about wanting to maintain “places where it is reasonable for biological women only to have access”. This is not the test under the EA. There are far more reasons for having single sex services and spaces and the bar for them is not high. They need to be for a legitimate purpose and be proportionate to that aim. In essence, they give legal expression to well-established, valued and necessary social conventions by which women of all types and ages exclude men at certain times or in certain circumstances.
Offenders
6. Will Labour ensure that no-one convicted of or charged with (while awaiting trial) offences of violence or sexual offences against women & children can be eligible for a GRC?
Medical diagnosis
7. What steps will Labour take to ensure that a diagnosis of gender dysphoria must be obtained from doctors with professionally recognised expertise in this field of medicine? What checks will the doctor be expected to make e.g. in relation to those with psychiatric co-morbidities?
8. What remedies will be available should such diagnoses be given – or obtained – fraudulently or in breach of any applicable conditions? In particular, will GRCs be revoked if obtained fraudulently?
Spouses
9. Will spouses of men seeking a GRC continue to be able to decide in advance of this being granted whether they wish to continue in the marriage or have it annulled so that they do not find themselves in a same-sex marriage without their express consent?
Anneliese Dodds’ article wrongly describes this as a spousal “veto”. It is not. She also says that it will be removed. This is worrying for three reasons:
- It will leave women stuck in marriages which have fundamentally changed from what they entered into. Having the possibility of divorce available after the event is not the same as being able to leave the marriage beforehand. Divorce is also not an option for religious women.
- It ignores the fact that a step described by her as of “momentous significance” for the person seeking a GRC is also of momentous significance for that person’s family members, principally spouses. Their interests should be taken into account not dismissed.
- Women’s consent to changes affecting them is vital. For Labour to signal that women do not have to consent to a significant change in their marriage shows a dismissive attitude to women and the concept of consent.
The Cass Review
10. Will Labour commit to accepting the findings of the Interim Cass Review in full?
Conversion therapy ban
11. Will Labour ensure that any ban on “conversion therapy” will not risk criminalising a “watchful waiting” approach by clinicians and therapists treating those with gender dysphoria or gender distress, whether alone or in combination with other conditions?
Public authorities
12. Will Labour ensure that public authorities, starting with the police and CPS, do not align themselves with any lobby group so that they avoid actual or potential conflicts of interest and can carry out their public duties “without fear or favour“?
13. What steps will Labour take to ensure that the sex of offenders is accurately recorded by the police, prison and judicial authorities to ensure the collection of accurate data?
Photo by Towfiqu barbhuiya on Unsplash
