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Westlake Legal Group > Posts tagged "Gender Recognition Act"

Radical: Our top five reads for the summer – on gender-related issues

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.

Last week, it was reported that Dominic Cummings had set the special advisers (SpAds) some books to read ahead of an “away day”. Dubbed “spad school”, by Times journalist Stephen Swinford, the advisers’ homework allegedly included reading all 350 pages of Philip Tetlock’s Superforecasting, alongside Andrew Grove’s (only slightly shorter) High Output Management.

Now, whatever your preferred method for predicting the future, it seems unlikely that the reading-list-story trend will stop here. It’s a yearly classic, after all. Whether you’re a school-leaver preparing for university entry, or a Government minister intending to use time away from Westminster to learn the historical context of your brief, your summer plans probably include some targeted reading. 

So, here are our top five Radical reads for the summer. As regular readers of this column might expect, they’re not cheerful page-turners. But they may well change your life.

1) It’s a badly kept secret that the Equality Act (2010) and the Gender Recognition Act (2004) aren’t exactly the best-drafted pieces of legislation. Discrimination solicitor Audrey Ludwig’s deep dive into the former – published just a few days ago on the WPUK site – emphasises its incredible complexity, in a neatly practical manner: she explains how she goes about determining whether someone has faced unlawful discrimination under the Equality Act’s purview.

Along the way, Ludwig highlights the lack of “objective research and analysis” into the impact the introduction of “self-IDwould have on sex discrimination, and related issues, such as pay. Key to these matters, she reveals, is the role the “legal comparator” plays in discrimination cases: self-ID would change “who and who cannot be used as a legal comparator”, and this would have serious repercussions. 

2) Employment solicitor Rebecca Bull’s recent briefing note for MBM Policy Analysis, Impact of Gender Recognition Reform on Sex Based Rights, sets out the implications of proposed Gender Recognition Act reforms on sex-based rights and protections under the Equality Act.

Like or loathe the Equality Act (and there’s a lot to criticise about it), it’s now woven into the way in which every business and public-sector organisation has to operate. How services are provided, and how employees are paid and treated at work, are prescribed by the Equality Act.

Where Audrey Ludwig’s blog gives a snapshot of how self-ID would affect the way in which the Equality Act works in cases of workplace discrimination, Bull sets out the “significant concern that single sex service provision on the lines of natal sex will be rendered unworkable and severely compromise the rights which women currently have to single sex services”.

3) The NHS recently edited its guidance on puberty blockers as a treatment for transgender children, to remove the claim that suppressing puberty with synthetic hormones is reversible, and to introduce a description of harmful side effects.

Much concern has arisen about the medical path increasingly regularly embarked upon by children who identify as the opposite sex. And, in Growing Pains: Problems with Puberty Suppression in Treating Gender Dysphoria, professors of medicine, Paul W. Hruz, Lawrence S. Mayer, and Paul R. McHugh, give a clear and comprehensive account of the use of puberty blockers, and the subsequent hormone therapies and surgeries that many of these children move on to as young adults.

The authors rebut the claim often preferred by medical professionals and advocacy groups that puberty suppression is fully reversible, and highlight a lack of scrutiny of the safety and efficacy of what they consider to be “experimental medicine” being practised on vulnerable children.

Anyone who’s concerned about the treatments currently being administered to hundreds of UK children who’ve been diagnosed with gender dysphoria will find this article useful and troubling in equal measure.

Published last month, Joanna Williams’ Civitas report, The Corrosive Impact of Transgender Ideology, is as punchily written and hard-hitting as its title, and her spiked credentials, suggest. But it’s also well researched and argued, with Williams’ experience as an academic grounding her readable style.

Culminating in five policy recommendations – including the immediate prohibition of the prescription of puberty blockers and cross-sex hormones to children – this paper (or short book, really, as it comes in at about a third the length of Tetlock) addresses the “social impact” of the “emergence of the idea of transgender”.

It also provides a neat summary of a shift in “progressive” rights-based activism – away from demands for “more freedom from the state for people to determine their sex lives unconstrained by the law’, and towards demands for “recognition and protection from the state […] to regulate the behaviour of those outside of the identity group”. 

5) Deep philosophical claims and arguments lie beneath all policy recommendations and legal analyses, and the written output of the sex/gender debate is no exception. Indeed, those of us who write about these matters are often criticised for being too esoteric, and for failing to engage with the real world.

Hopefully, the practical focus of the works listed above will serve to counter that criticism sufficiently, however, for us to be able to end this week’s column by recommending some top philosophical writing. We have great hopes for Sussex philosopher Kathleen Stock’s upcoming book, Material Girls: Why Reality Matters for Feminists, due out in 2021.

But, until then, check out her recent TLS review of Judith Butler’s The Force of Nonviolence, and her 2019 Aristotelian Society talk on sexual orientation as a “reflexive disposition to be sexually attracted to people of a particular biological Sex or Sexes”.   

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Facebook, Liz Truss and future challenges with the internet giants

In recent weeks, Facebook has been up against huge pressure to control hate speech and groups on its site. Much of this increased after President Donald Trump posted “when the looting starts, the shooting starts”, in response to protests in Minneapolis, on both Twitter and Facebook. The aftermath exemplified, among many things, that the two dominant social media sites had taken very different strategies to tackling inflammatory content.

Twitter went for the cautious approach. It added a warning label for the post to say that it had glorified violence, and hid the content unless it was clicked on. Facebook, on the other hand, kept Trump’s post up, on the basis that it was not an incitement of violence, but an announcement of state use of force.

Facebook’s “hands-off” approach to Trump only changed when a number of powerful companies pulled out of advertising with the site, such as Coca-Cola, Verizon and Ford, in a campaign co-ordinated by Stop Hate for Profit. Some have called these organisations opportunistic – Covid-19 has eaten into advertising budgets, and surely any company will jump on the chance to look socially righteous – but it’s still an expensive wobble that Facebook no doubt wants to avoid.

As a result, the social media has said that it will add a label to tell people that content may violate its policies; it’s a watered down version of what Twitter is offering. Even so, Zuckerberg has been fairly resilient in dealing with Stop Hate for Profit, which has set out a list of content it wants gone from Facebook and other sites. Zuckerberg said that he would not change Facebook’s policies; that he thinks advertisers will be back “soon enough”, and that he remains committed to democracy and free speech.

In spite of this, one strange area Facebook has increasingly delved into is political affairs, especially in anticipation of the upcoming US election. Some of this is to right the wrongs of 2016, in which there was foreign interference, with Russia attempting to “undermine the voting power of left-leaning African-American citizens, by spreading misinformation about the electoral process”, among other activitiesFacebook has since spent “billions of dollars in technology” and hired “tens of thousands of people” to fix this. (Incidentally, the UK is still waiting for its report on the alleged Russian interference in politics to understand the extent of it here.)

But more strikingly, Facebook has ventured into interventionist territory, with the new aim to “help 4 million people register to vote”. In doing this, Zuckerberg is taking the organisation much further away from its initial design. Many users, like myself (aged 17 when it first came out), will think of it predominantly as a tool for making friends online and posting photographs; a type of social peacocking, in many ways.

Zuckerberg, however, clearly has more profound visions. He says he wants to boost “authoritative information” for voting that he expects “160 million people in the US to see”. The goal sounds altruistic on the face of it, but it also poses big questions, like, who gets to categories “authoritative”? And should social media giants be involved in democracy at all?

Increasingly there’s been accusations from conservatives that in delving into the political realm, social media sites tend to show biases in favour of liberals, most notably Trump, who said “Twitter is completely stifling FREE SPEECH” after it fact-checked one of his Tweets. 

One writer suggests that out of “22 prominent, politically active individuals who are known to have been suspended since 2005 and who expressed a preference in the 2016 U.S. presidential election, 21 supported Donald Trump”. In UnHerd, the author and commentator Douglas Murray goes further, revealing his own suspicions that Twitter is penalising right-leaning writers, such as hiding “likes” (a way of showing support for posts) from their posts.

Some say that there is no evidence of social media biases, with Kevin Roose, a tech journalist, noting yesterday that the best performing accounts on Facebook are all conservative. A tech expert tells me that the “exact opposite viewpoint (of social media bias) is shared in various countries, where the view is that the anti-capitalist left is censored by American tech giants”.

None of this has reassured Trump, however, who is proposing a bill to make social media giants take legal liability for material that their users post. But this could crush free speech, to a certain extent, making companies more likely to remove content to protect against litigation.

Even if there is not algorithmic censorship, many people were concerned last week after Google UK launched into Liz Truss, the Conservative MP, on social media. On June 18 it posted a petition trying to lobby her on the Gender Recognition Act.

This event should have rung serious alarm bells; a tech giant coming for a Conservative politician is seriously bad news, although – tellingly – there was a dearth of news stories about it. One suspects if Google UK had attacked a Remainer politician on refusing to leave the EU, it would have received the proportion response. This was, after all, perhaps the world’s biggest holder of personal information interfering in UK democracy.

One concern that has been pointed out repeatedly about Silicon Valley, and its companies, is that the demographic make-up of its tech talent could influence the ways in which content is censored. Even Zuckerberg has called it “an extremely left-leaning place”, and many will wonder how this affects their role in deciding the terms of “offence” on social media sites, and otherwise. 

In the UK, perhaps the most significant issue is that we are just so removed from these authors of our (online) reality, even if they have domestic offices. We know little about the algorithms they use – and it suits tech companies this way, limiting others’ abilities to get into the sector.

Here brings us to the biggest question: how should UK politicians deal with Facebook and other tech giants? Much of the focus on these companies has been on their involvement in elections, but they also have an impact on Joe Bloggs’ income, too, as one report by the Competition and Markets Authority (CMA) elucidates on.

It points out that Google has “more than a 90 per cent share of £7.3 billion search advertising market in UK, while Facebook has over 50% of the £5.5 billion display advertising market”. The report suggests that by dominating the market, these organisations control the default prices for advertising, which are arguably higher than they need to be – and in turn effect the consumer, as advertisers keep their product costs high.

CMA sets out numerous ways in which the Government can start to break up these giants and encourage competition. It is quite alarming in the ways in which it highlights tech giants’ control over many things – from prices, to regulation. And all of this has to change.

Ultimately, along with the current 5G issues the Government is dwelling on, they are going to increasingly need the knowledge, and foresight, to intercept some of these tech powers before they become so dominant as to make their powers irreversible.

Already the Government has found that Apple stifled the approach it wanted to take to contact tracing, and this is just a taste of what’s to come – as the tech giants, sometimes working in conjunction, block out competition. There is a mammoth amount of information to take on board, changing all the time. Along with Brexit and Coronavirus, Tories will have their work cut out.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Rebecca Lowe: In reporting on the Gender Recognition Act, the media has shown shocking inaccuracy

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

On June 15, The Sunday Times reported that, according to leaked documents, “Plans to allow people to change their legal gender and ‘self-identify’ as a different sex have been scrapped”. 

These plans had been developed under Theresa May’s government, and would have allowed people to change the sex on their birth certificate without a medical diagnosis of gender dysphoria. Readers of this column won’t have been surprised by the news of a U-turn on these plans, however.

Such a move was strongly hinted at by Liz Truss, the minister now responsible, in a speech this April, in which she underlined that the present government’s approach to the future of the Gender Recognition Act (GRA) would be guided by the need to protect single-sex spaces, and maintain “proper checks and balances” in the system.

Subsequently, last week’s leak – the details of which remain unconfirmed by the Government – provoked anger from LGBT groups in all the main UK parties. Representatives from the Conservatives, Labour, SNP, Liberal Democrats, Greens, Alliance Party, and Plaid Cymru, published a joint letter.

However, the letter’s substance – and media reportage of it – exemplifies the way in which so many public statements about these matters are rife with bad information, particularly regarding current law and practice.

In their letter, the LGBT groups bemoan a “rollback on trans rights”, even though there has been no suggestion that the existing right to change one’s birth certificate will be amended. And the BBC’s report on the groups’ letter was so full of errors, it had to be corrected.

The BBC report – before correction – claimed that the GRA currently requires “a long and medical process” for a change of sex to be recognised, and contrasted this with the way in which gaining recognition of “acquired gender” under the Equality Act “does not have to include surgery”.

In fact, the GRA doesn’t require surgery or any medical treatment to have taken place – only a diagnosis of dysphoria. It’s also hard to conceive of the process as particularly lengthy, considering the seriousness of the outcome: 75 per cent of applications for a Gender Recognition Certificate receive a decision within 20 weeks, and many with 6–11 weeks; 90 per cent of applications are successful.

Moreover, the Equality Act does not mandate recognition of a person’s acquired gender: unless they have acquired a gender recognition certificate, self-identifying transgender people are still to be treated as a member of their biological sex (although they mustn’t be discriminated against for identifying as transgender – in the workplace, for example).

It should also be noted that, at the time of writing this column, the BBC report still contains an error: the claim that trans people may only be excluded from single-sex services for the opposite sex, after a “case-by-case” assessment, is a misinterpretation of the Equality Act.

Sadly, these kinds of mistakes pervade media commentary and the public claims of activists. In the wake of JK Rowling’s recent intervention in the debate, the editor of Pink News purported to ‘correct Rowling’s assertion that “A man who intends to have no surgery and take no hormones may now secure himself a Gender Recognition Certificate and be a woman in the sight of the law”.

However, when the Pink News report was itself independently fact checked, Pink News had to make its own corrections, because Rowling had indeed been right: no medical procedure or treatment is necessary to secure a certificate. Rowling’s claim, therefore, that “many people aren’t aware of this” has seemingly been vindicated.

But are the activists peddling this disinformation genuinely ignorant of the laws they’re campaigning to change? Or are they, at best, simply ambivalent about the truth – so focused on pushing for self-ID and the mandatory recognition of gender identity for all purposes, that they don’t care that the current law is not what they seem to find it in their interests to claim?

The cynic might fear that these people’s “disinformation” would be better described as “misinformation”, but, regardless of intention, it is clearly a worrying state of affairs when a supposed expert – the editor of a magazine describing itself as ‘the brand [sic] for the global LGBT+ community and the next generation’ – is making such basic factual errors. 

Unfortunately, bad information can travel fast. Too many people who should know better have taken these misreadings of the law at face value, and this includes those in positions of great influence. We have written here before, for instance, about the widespread adoption of “informative” materials for schools that have been withdrawn when subjected to legal challenge, owing not least to their inclusion of serious mistakes regarding guidance on what the law currently is. 

And it is also the case that high-profile commentators, entering the debate to attempt to pour the oil of compromise on troubled waters, have found themselves floundering. Not only does this kind of well-meant intervention typically serve to spread bad information further, it also often perpetuates a frustrating straw-man approach in which the realities of the debate are further obscured.

A sad example of this is Daniel Finkelstein’s recent discussion on the matter in his Times column best filed under the classic ‘but nobody’s claiming biological sex doesn’t exist’ category. Finkelstein’s claim that “it’s hard to find anyone who thinks that there isn’t… such a thing as sex as well as gender” clearly shows him to be in the extremely lucky position of both never having met a Judith Butler fan, or having read pretty much any Twitter debate on these matters.

And his suggestion that “the chances… are effectively zero” that a man might claim to be a trans women for personal gain shows Finkelstein to be in the even luckier position of never having been a vulnerable women in a “single-sex” prison or refuge. Now, presumably, he is just attempting to be kind by weighing in in this conciliatory manner. But it’s like what they used to say about communism: “Well, it’s a nice idea, I suppose…” Except, of course, as soon as you take the time to find out the truth, it’s really not.

Since writing this column, and beginning our campaign, we’ve taken every chance to stress our commitment to equal respect for all human beings. And we’ve promised to die on the hill for the right of adults to conduct themselves as members of the opposite sex. But amplifying lies about the content of the law is wrong. And denying biological truth is wrong. And these wrongs come with great costs – to society as a whole, and to the vulnerable, in particular. 

The recent Newsnight report on an NHS gender clinic reveals what can happen when mistruths and deceptive power-play become the foundation of a medical service – leading to doctors harming the children they have been trusted to help. And the Pink News editor’s blatant disregard for basic fact-checking shows what happens when the fourth estate is turned against the people.

We know some of our readers think we’re talking about fairy tales in these columns. We know some of you don’t think these things matter at all. But they do – and we need to keep talking about them, or the real-world consequences will continue to escalate.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Emma Webb: Scotland’s new Hate Crime Bill imposes a new system of blasphemy. It urgently needs rejecting.

Emma Webb is a Radical Associate, and the Director of the Forum on Integration, Democracy and Extremism (FIDE) at Civitas.

Last weekend, author JK Rowling stuck her head above the parapet again by criticising the phrase “people who menstruate”.

“I’m sure there used to be a word for those people”, she Tweeted, “Someone help me out. Wumben? Wimpund? Woomud?”. Responding to her critics she explained that she was opposed to the erasure of the concept of sex. An entirely reasonable position to take, but one that has become heretical wrong-think in some quarters.

Our policing of language, whether by law or by mob, is leading us down a dangerous road that must be resisted.

In May, the United Nations Tweeted advice on how we should speak. We should say “humankind” instead of “mankind”, “owner” instead of “landlord”, “partner” instead of “boyfriend/girlfriend”, “family name” instead of “maiden name”, “spouse” instead of “husband” and “wife”. Doing so, they said, would “create a more equal world by using gender neutral language if you are unsure about someone’s gender or are referring to a group”.

This is not the first time in recent months that an international organisation has issued such advice. In March the World Health Organisation told the public to use some words and avoid others when talking about the Coronavirus. We should avoid calling it “Wuhan virus”, “Chinese virus” or “Asian virus”, and should speak of “contracting” not of “transmitting” or “spreading” Covid-19 because, according to WHO’s General Director “stigma, to be honest, is more dangerous than the virus itself”.

It is increasingly accepted that policing expression is a path to a better society – and this should worry us immensely. On our own shores, the same can be found in the recent Hate Crime and Public Order (Scotland) Bill, particularly its creation of “offences relating to stirring up hatred”. The minister behind the Bill, Humza Yousaf, the Scottish Justice Secretary, explained the motivation for this legislation: “we all have a responsibility to challenge prejudice in order to ensure Scotland is the inclusive and respectful society we want it to be”.

In the minister’s opinion, this can be engineered through legislation. Commenting on the Bill, he said, “Stirring up of hatred can contribute to a social atmosphere in which discrimination is accepted as normal. By creating robust laws for the justice system, parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated”.

I have written elsewhere about the implications of this for freedom of expression about religion – but the Bill would also cause real problems in the ongoing debate around transgenderism and the Gender Recognition Act.

The protected groups named by the Bill are expanded to include: age, disability, religion (social, cultural group, perceived religious affiliation), sexual orientation, transgender identity, and variations in sex characteristics.

“Stirring up hatred” against these groups, according to the Bill, is defined as behaving in a threatening, abusive or insulting manner, or sending, showing or making available such material to another person. It makes a crime of displaying, publishing or distributing “material that stirs up hatred”. It is irrelevant if an individual intends to “stir up hatred” – it is enough that “it is likely that hatred will be stirred up”.

The Bill makes the possession of “inflammatory material” illegal giving a judge the power to grant a warrant for the police to search your home, seize and destroy relevant material. Most authoritarian of all, the Bill specifically states that public performances – plays – will also be subject to this, seeing directors and actors brought before a court. These offences may result in up to seven years in prison.

As pointed out by writer Stephen Daisley “this Bill comes in the middle of a debate about the law on gender identity. That debate is characterised by robust, often belligerent rhetoric, especially on social media.” Feminists are often derided as “TERFS” – trans-exclusionary radical feminists – and critics are called transphobic for arguing that sex is a biological fact.

A Bill such as this would have a very real negative impact on debate over this issue. All we need to do is look at how some have already been persecuted for taking certain positions.

Take think-tanker Maya Forstater who was fired after tweeting that transgender women could not change their biological sex. She brought a test case against her former employer, the Centre for Global Development (CGD) to ensure that gender critical views – that there are only two biological sexes – is protected under the equality act. The judge ruled that her views were “not worthy of respect in a democratic society”, and she lost the case.

Or the ‘cancelling’ and no-platforming of those with gender critical views on university campuses, like feminist firebrand Germain Greer for her view that trans women are “not women”.

The complexities of how this Bill could be used to silence dissent are obvious – it would result in an identity politics crossfire that would make discussions of public interest impossible. Take the case of David Mackereth, the Christian doctor who was sacked for refusing to use gender pronouns because he believed compelling him to do so was “a ritual denial of an obvious truth” and against his conscience and religious beliefs. He argued that the Department for Work and Pensions discriminated against his religious belief by suspending him, while they described his stance as “unwanted conduct”.

Even the LGB Alliance, a breakaway group from LGBT+ activist group Stonewall, describes itself as “asserting the right of lesbians, bisexuals and gay men to define themselves as same-sex attracted” has been criticised for transphobia. As Debbie Hayton writes in The Spectator “when homosexual people declare themselves to be attracted to the same sex, as opposed to the same gender, they risk being attacked and shamed as transphobic bigots”.

Currently the verdict is out on the Gender Recognition Act (GRA). Current practice which, for safeguarding reasons, requires an individual to have a formal diagnosis of gender dysphoria, live in the acquired gender for two years, and provide supporting evidence to a panel of clinicians; the GRA seeks to require no medical diagnosis or evidence and would make it easier to transition, including for 16-17 year olds.

Rightly, there are objections. Liz Truss, the Minister for Women and Equalities, recently announced the intention to protect single-sex spaces and to protect younger people. Reports suggest this may include banning ‘gender confirmation surgery’ for under 18s.

Some activists were unhappy about this; notably influential Stonewall. One article in Pink News described her announcement as an “attack on transgender youth”. It is easy enough to see that the Bill’s “abusive or insulting” would be used on this battleground, and how detrimental it would be to open debate.

As Orwell asked, “Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thought-crime literally impossible, because there will be no words in which to express it”.

The implicit – and dangerous – idea is that you can change hearts and minds with law, and build a particular vision of society, by limiting expression. But as one commentator noted “criminal law isn’t ethics. What is legal doesn’t – and shouldn’t – exhaust an analysis of what’s right and wrong to do and say and encourage others to think”.

The Hate Crime and Public Order (Scotland) Bill abolishes the offence of blasphemy, at the same time introducing a more far-ranging equivalent that seeks to protect new “sacred” beliefs. If it is successful, its impact will not stop at the Scottish border.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Radical: A guide to trans-speak

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.

Last week saw the alarming news of homework set for 13-year-olds at the Archbishop Sentamu Academy in Hull, in which they were asked to define terms like ‘hardcore pornography’.

We at Radical were inspired, and set ourselves some homework over the Bank Holiday.

Technical-sounding language – in need of defining and explaining to nervous teachers, public officials, and HR departments – has been a key tool in the toolkit of transgender activists.

So, we’ve set out below our definitions of commonly-used terms in the gender debate.

Some are quite specific or bespoke neologisms; others are standard words whose meanings have become contested.

Woman

Woman is a noun with a vast heritage; it’s hard to conceive of any verbal human civilisation that wouldn’t have had such a term.

Woman relates both to biological realities, and to non-biological norms and assumptions related to those realities.

Most of us have a pretty clear idea of what it is that makes someone a woman.

It’s easier, however, to think of sufficient conditions for this – e.g. all human beings who have ever had a period are women; all human beings who give birth are women – than its full set of necessary conditions.

Not all women have had, or will have, periods; not all women are petite; not all women like pink.

Debate rages as to whether all sufficient and necessary conditions of being a woman are biological in nature.

At Radical, we strongly believe they are: that sex is determined biologically, and that gender is a theoretical construct.

Man

Alongside woman, man is a member of the two-member set best described as ‘sexes of human beings’.

Terms like ‘man’ and ‘woman’ aren’t value judgements, and don’t determine individual behaviour.

Rather, they relate to certain biological truths of sex dimorphism – i.e. the binary division, grounded in reproductive anatomy, observed in human beings.

As biologist Emma Hilton has emphasised, ‘humans, like almost every other thing that isn’t a mushroom or bug, are sexually dimorphic’.

That some living things aren’t sexually dimorphic doesn’t mean that human beings aren’t.

And that some particular human beings don’t fit perfectly into either of the two sex categories doesn’t mean that human beings aren’t sexually dimorphic.

There is no other human sex category aside from male and female.

Trans

A trans- (or transgender-) person is a human being, and is, therefore, either a man or a woman.

To some, that may sound offensive, but it is both true and important.

One reason it’s important is that human beings all share certain rights.

There are disagreements about the grounding of these human rights – whether they don’t exist unless they’re set out in law, for instance, or whether they’re simply a natural fact about the world, that’d remain true even if nobody ever knew about it.

However, what’s crucial is that they’re rights that all human beings hold, equally.

Now, transwomen are often contrasted with ‘natal’ women (ditto transmen and natal men), in that transwomen are human beings who don’t naturally meet sufficient biological conditions of womanness, but who believe themselves to be women.

Sometimes they ‘transition’ (see below), but transgender activists consider anyone whose gender (see above) does not ‘sit comfortably’ with the sex they were born as, to be trans.

Moreover, as some people don’t accept there are biological conditions of being a woman or man, it can be hard to agree upon a definition of ‘trans’.

This not least because, if being trans is simply to believe you are trans, then surely, a natal woman could be a transwoman.

Gender critical

To be gender critical (or GC) is, broadly, to be concerned by the increasingly popular idea that adherence to social norms commonly associated with one of the sexes determines whether one is, in fact and law, a member of that sex – or that these matters depend entirely on internal feelings of one’s personal ‘gender identity’.

Some GCs are philosophically conservative, some deeply value scientific truth, but the position is most commonly associated with feminists who object to the idea that being a woman is determined by stereotypes.

Transitioning

To transition means to change from presenting oneself as a member of one’s birth sex to presenting in accordance with the physical characteristics and gender norms commonly associated with the sex with which one identifies.

People who are not GC would describe this as transitioning from the gender one is ‘assigned at birth’, in order to reflect one’s ‘true gender identity’.

Transitioning can include undergoing medical treatment to change one’s physical appearance to resemble the opposite sex, but more frequently involves changing one’s name, pronouns, and ways of dressing – known as ‘socially transitioning’.

In law, under the Equality Act, ‘gender reassignment’ is defined as occurring when a person is ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’.

This gives the person concerned legal protection from discrimination, ‘on the grounds of gender reassignment’; no formal or legal process is required to gain this protection.

Gender reassignment is not to be confused with legally changing one’s sex by obtaining a gender recognition certificate under the Gender Recognition Act – for which a formal process and a diagnosis of gender dysphoria is required.

De-transitioning

De-transitioning is the process of reversing a transition, thereby returning to accepting and identifying as the sex that one was born as.

In cases involving no medical treatment, detransitioning is straightforward although no doubt emotionally painful, but where the de-transitioner has had medical treatment, such as surgery or puberty blockers, complete reversal is often impossible, causing great distress.

A woman who had thought she was a transgender man, and medically transitioned at a young age, is currently taking legal action against the NHS clinic that carried out her treatment.

TERF

TERF is an acronym, that, like radar, has become a word in its own right.

Originally, it stood for ‘trans-exclusionary radical feminist’ – meaning someone with radical feminist politics, who doesn’t accept that transwomen are women, and therefore believes they don’t fall within feminism’s sphere of concern.

Now, TERF is mainly just a term of abuse, used against GCs, to imply they are bigoted, transphobic, and even (the horror) allied with conservatives.

Transphobia

Transphobia is an ill-defined term, which is often used to criticise anyone with GC views.

For example, LGBT activist organisation Stonewall defines transphobia as ‘[t]he fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it’. 

On that understanding, anyone with reservations about the concept of gender identity, and all its implications, can be described as transphobic.

Because being transphobic is considered a serious transgression, associated with discriminating against and distressing trans people, allegations of transphobia can cause people to refrain from expressing views on matters of sex and gender.

Hopefully this definitional exercise has been more educational than the homework set by Archbishop Sentamu Academy, which incited children to research pornography.

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Victoria Hewson: Trans guidance needs clarification. At present, it collapses under scrutiny.

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.

Four weeks ago, I wrote about the judicial review of the “trans inclusion toolkit”, which had been published by Oxfordshire County Council to provide guidance for schools in the county.

A judge had found the case legally arguable, and it was to proceed to a full hearing later in the year.

Days later though, the council decided that, rather than defend its guidance in court, the toolkit would be withdrawn, so the judicial review would not proceed.

Now, another piece of educational guidance from a public authority has also been withdrawn, after another judicial review process was initiated by another concerned schoolgirl.

On April 30, the Crown Prosecution Service (CPS) took down its guidance on LGBT+ hate crimes in schools, just days after a ‘letter before action’ was issued.

This CPS guidance purported to advise schools on policies and practices, in order to help them comply with equality law and to prevent “anti-LGBT+ hate crimes” being committed.

According the guidance’s list of categories, these crimes include “ostracising and excluding” children from friendship groups for “reasons of sexual orientation, perceived sexual orientation, trans identity or perceived trans identity”.

In both cases, rather than having to argue in court for the legality of their interpretation of the relevant laws, the authorities concerned have simply withdrawn their guidance.

These cases suggest that, left unchallenged, public authorities have been all-too-willing to adopt ideological positions on gender identity, which they themselves seem to be aware will not stand up to legal scrutiny.

There are still innumerable examples of policies and guidance that have been issued by public bodies that should also be reviewed for compliance with law (including local authorities using similar ‘toolkits’ to the one scrapped by Oxfordshire).

High-profile examples include the Equal Treatment Bench Book of advice for judges, which advises they to refer to defendants who appear before them by those defendants’ preferred pronouns, as “self-definition is the most important criteria (sic)”.

As a result of judges following this advice, the Law Society Gazette has reported that “[a]t least one victim of violence by a transgender woman has been reprimanded in court for using male pronouns while describing the attack.

Finding the defendant guilty, the judge refused the victim compensation, saying that when asked to refer to the defendant as ‘she’, the victim had done so with ‘bad grace’ or continued to use ‘he’”.

The Bench Book also includes some highly contestable guidance on allocating transgender prisoners (including those who do not have a Gender Recognition Certificate, legally recognising them as a member of the opposite sex) accommodation in the part of the prison estate that “corresponds to their gender identity”.

Many others examples were listed by Baroness Nicholson in her letter to Liz Truss on 29 April.

The surge of legal actions concerning the legal status of ‘gender identity’ vindicate Truss’s view (recently announced to the Women and Equalities Committee) that intervention is needed to clarify the law as it applies to single-sex spaces.

Indeed, it seems that Truss has already made a start on this: she intervened swiftly to remove Government Equalities Office branding, and implied endorsement, from guidance issued by Equaliteach (an equality training and consultancy organisation) that urged schools to allow children to use the facilities that matched their identified gender.

Worryingly, Equaliteach claimed that its guidance had been approved by officials working for the Minister for Women and Equalities, which perhaps illustrates the scale of the task ahead of her.

In its statement on the withdrawal of the toolkit, Oxfordshire County Council noted that it would follow the national guidance that is due to be published soon by the Equality and Human Rights Commission.

This guidance, and all other guidance and policy for which central and local government authorities are responsible, must clarify the applicability of the single-sex exemption under the Equality Act that allows service providers to make a space or service available to women (or men) only, based on sex.

This provision has been widely misunderstood and misstated, with the effect of endangering the privacy and safety of women and children (including trans-identifying children) and undermining basic principles of consent.

The confusing wording of the Gender Recognition Act is not helpful in this regard.

Clear guidance on how the provision of single-sex services is intended to be protected by the Equality Act would give confidence to public and private service providers and users – confirming that they are not breaking the law by providing spaces in which women are not compelled to be, without their consenting, in privacy-infringing situations with biological men.

Failure to provide formal clarification about these matters brings serious risks.

It not only invites further legal challenges from women and children, on the grounds that their human rights are not being respected – it also risks undermining the respect for, and safety of, trans people that is unquestionably due to them.

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Rebecca Lowe: Truss’s speech was an astonishing victory for common sense and children’s rights

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

You probably read about the speech Liz Truss gave last week, setting out her priorities as Minister for Women and Equalities.

Maybe not. If it weren’t for Covid-19, you definitely would have done: it was astonishing.

One justification for continuing to write and think about things aside from Covid is that other people certainly are.

In her speech, Truss made clear that she and her team are persisting with matters related to their brief, even though much has, understandably, been delayed.

This is reassuring not least because – as emphasised in previous Radical columns – there’s an alternative power-base that’s very much continuing its influential work.

This power-base is a lobby that writes sex/gender policy for public bodies; that receives funding for partisan projects at top-end universities; that threatens anyone speaking out against it, with accusations of hate crime and worse.

It’s a lobby that assumed – until Truss’s speech – that not only was it going to continue setting the agenda, and receiving state support to do so, but that the law would be changed to reflect its demands. Its proponents did not reckon on Liz Truss.

The first surprise of Truss’s speech – that the Government would seemingly not be advancing legislative change to allow trans women access to biological women’s spaces – wasn’t truly a surprise.

The consultation on ‘proposed changes to the Gender Recognition Act’ closed in 2018, yet there’s been no suggestion that those changes, which would introduce ‘self-ID’, were happening.

Indeed, it was recently reported that they’d been “indefinitely delayed”.

Truss’s reference to the “protection of single-sex spaces” as “extremely important”, implies that “indefinitely” has, on her watch, become ‘permanently’.

Truss’s following promise – to ensure “transgender adults are free to live their lives as they wish without fear of persecution, while maintaining the proper checks and balances in the system” – reflects the position held by socially-liberal opponents of self-ID, like us at Radical.

This position combines commitment to equal respect for all human beings, with recognition of important truths about sex-based difference.

These truths ground opposition to self-ID for two main reasons.

The first stems from a concern for privacy, particularly regarding personal bodily matters – and recognition that members of the two sexes have different needs, here.

The second stems from a concern for security, and particularly relates to the fact that biological women are, on average, physically smaller and weaker than men.

Neither of these reasons gives justification for hatred of anyone. Moreover, they reflect UK (and other) law, grounding the single-sex provision outlined in the Equality Act.

You might be surprised to learn this point of law about single-sex provision – as the aforementioned lobby has been working flat-out, behind the scenes, to persuade you it’s not the case.

Of course, believing, for instance, that trans women have no right to access to women’s single-sex spaces doesn’t mean trans women’s particular needs should be ignored; but, rather, that their needs don’t obliterate the needs of biological women.

We shall discuss how public policy should respond to this in further columns.

Let’s turn to the second surprise of the Truss speech – and this was a serious surprise.

First, some context. The issue that distresses me most is the harm being done to children, in the name of kindness and respect.

At Radical, we believe that if an adult wishes to seek medical intervention to make their body resemble that of a member of the opposite sex, they should be free to. But that in the case of children, these interventions are always wrong.

The number of children referred to the Gender Identity Development Service (GIDS) – the UK service treating under-18s who “experience difficulties in the development of their gender identity” – has famously rocketed.

GIDS medical interventions fall into two categories: a) the prescription of hormone blockers, currently from age 11; b) the prescription of cross-sex hormones, currently from age 16.

Much has been written about the life-changing physical and mental damage these interventions can cause children, and an ongoing judicial review has been brought against GIDS by a nurse, a parent, and a former patient.

Here, the organisation Transgender Trend discusses hormone blockers: they note GIDS has treated “over 1000” children with these “experimental” drugs, and summarise academic literature on side-effects, ranging from bone-thinning, to altered “reproductive and sexual development” and “development of both brain structure and function”.

For now, it’s sufficient to accept there’s too little evidence to know the long-term effects these apparently ‘reversible’ treatments can have on children.

Even if we did know, however, that would not justify their prescription. Truss stated:

“I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.”

This is a brave statement, for which Truss deserves support from all who care about the safety and wellbeing of children – and, for which she will witness the wrath of that alternative power-base.

But there is a further inherent step to take.

The problem is not just that these decisions are irreversible, or even harmful – it is that a child is incapable of making such a serious decision, in a sufficiently reliable manner.

Not only is their decision-making capacity under-developed, they are particularly susceptible to influence.

Yet, the carrying out of these treatments is dependent on the child’s belief that what they need is for their puberty to be prevented; that belief is a necessary condition for treatment.

It’s also wrong, therefore, to think that a parent could take on their child’s responsibility, here, by consenting to this treatment for them (although that’s what’s currently being taken to happen, often after the parent is subject to emotional blackmail from the power-base).

In other words, any parental consent given, in this kind of case, would be in order to meet a need for treatment that’s predicated on the belief of someone – a child – whose beliefs are inadequate for the purpose.

This analysis may seem patronising, and even invoke a need for reassessment of the age of majority, but it seems clear that the only solution is for the option of such treatment to be taken off the table.

One more thing. I saw someone Tweet in response to Truss’s speech: “But what are you suggesting we do? Send doctors to jail?”. This Tweet, however intended, is no jokey riposte.

When I spoke recently with a former GIDS employee, they told me their personal justification for having provided these services to children was that provision’s legal, and there’s demand for it.

To my mind – and seemingly Truss’s – it’s clear that this provision should be made illegal. But, until then, there are serious moral questions for all adults involved.

Children simply cannot be taken as driving this ‘demand’, and neither can their parents.

To provide these services not only causes harm, it is to be complicit in the instrumentalisation of children on the altar of an immoral political project.

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Victoria Hewson: The law on gender and trans rights is confused and confusing – the Government must bring clarity

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.

The culture wars over sex and gender are increasingly being played out in the courts. The judge in Maya Forstater’s recent employment tribunal found her belief that sex is immutable to be unworthy of protection in a democratic society. Harry Miller won a judicial review against the College of Policing over action taken against him for sharing ‘gender critical’ material on social media. Kate Scottow was found guilty of an offence for “caus[ing] annoyance, inconvenience and anxiety” during a sustained Twitter squabble with a serial litigant transwoman. And another judicial review has just begun, into the treatment of children by the NHS Gender Identity Development Service (GIDs) — brought by a nurse, a parent, and a former patient.

This growing legal focus stems from developments in UK legislation and case law, alongside the impact of activist judgments by the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).

The 2004 Gender Recognition Act (GRA) allows trans people (on having proven they have gender dysphoria, and having lived as their ‘acquired sex’ for two years) to obtain certificates entitling them to be treated as belonging to that sex for (almost) all legal purposes.

This Act was passed after the ECHR found in the 2002 case of Goodwin v UK (‘Goodwin’) that the UK was violating the rights of transsexuals (the then-standard term for trans people) to a private life, under Article 8 of the European Convention on Human Rights.

This violation was manifested by the UK’s failure to afford full legal recognition of these people’s new gender (or sex, or even sexual identity — as the judgment uses all three terms, pretty much interchangeably). The ECHR acknowledged that its decision went against its own recent case law, but decided it should proceed with a “dynamic and evolutive approach”.

In the 1996 case, P v S and Cornwall County Council (‘Cornwall’), the ECJ decided that discrimination against a person on the grounds of gender reassignment was already prohibited, thanks to a directive covering discrimination on the grounds of sex.

The UK government was therefore required to introduce a regulation providing protection along these lines — despite the fact that the relevant directive actually referred to sex, rather than gender reassignment or gender identity. (Indeed, it was then considered necessary to update the directive itself!). In his influential advice to the court, the Advocate General acknowledged the potential controversy ahead:

“I am well aware that I am asking the Court to make a `courageous’ decision [but] what is at stake is a universal fundamental value, indelibly etched in modern legal traditions and in the constitutions of the more advanced countries: the irrelevance of a person’s sex with regard to the rules regulating relations in society.” *

The consequences of both these cases have been far-reaching. The law is now confused and confusing — and the interaction between the GRA and the Equality Act (2010) is particularly complicated. Try working out this explanation from the UK Equality and Human Rights Commission (EHRC):

‘Under the [Equality ] Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.’

Moreover, there are circumstances in which it’s permitted to discriminate between (natal) women and transwomen (including those holding GRCs) — when deemed necessary and proportionate to achieving a legitimate aim (regarding safety or welfare, for instance). Confusion over this has been exploited by activists, who sometimes misstate the law to suggest that excluding trans people from single-sex spaces is already illegal.

In Goodwin, the ECHR uncritically used expressions like ‘brain sex’, which would surely provoke derision — not least from feminists and medical professionals — today. And, surely, the drafters of the legal instruments the judges interpreted in these cases could not have expected the outcomes that arose.

We can certainly see that the judges themselves didn’t — and weren’t really in a position to — undertake analyses of their decisions’ policy implications. But such is the elevated and entrenched position of both human rights and EU law that Parliament could do little but introduce, and maintain, legislation bringing the UK into compliance with the findings of the European courts.

Now, amidst widespread confusion, and following variation across recent judgments in the UK courts, it’s time our Government stepped up. Trans rights activists had a head start with judgments like Goodwin and Cornwall; conservatives, feminists, and society at large have much ground to make up. The GRA’s obscure wording, and the complex and all-encompassing provisions of the Equality Act, together with public authorities’ uncritical acceptance of trans activists’ claims, have led to worrying developments.

These include current English and Scottish proposals to remove the need for medical diagnosis and proof of living in one’s “acquired gender” when obtaining legal recognition of having changed sex. This would result in so-called ‘self-ID’, and the effective loss of single-sex spaces, amongst other consequences. We have also seen startling increases in life-changing medical interventions on young people.

But recent case law has shown that this movement is now starting to collapse under its own contradictions. Perhaps the UK government was right in 2002, when it disputed that scientific research and societal change had led to “wide acceptance and consensus on transsexual issues”. And perhaps the judges were wrong when they pronounced that there were “no significant factors of public interest to weigh against the interests of [Christine Goodwin] in obtaining legal recognition of her gender reassignment”.

In light of large sections of the Labour Party demanding that anyone denying that TWAW (‘transwomen are women’) must be censured, it should also be remembered that it was the perceived movement of other countries that gave the ECHR the grounds to override the UK’s ‘margin of appreciation’ to determine the matter ourselves. We must not be swept along again without open debate and widespread understanding of the possible implications of further legal changes.

All of this also demonstrates the need to consider carefully both the role of judges, and the boundaries of human rights laws. In the cases outlined here, activist judges were able to make laws that have had serious societal consequences. In seeking to protect the rights of trans people, judges have set in train a series of legal and cultural developments that threaten the privacy and the safety of women and children. As the current government looks into taking back control from judges, these cases provide a stark illustration of what can happen when judges’ decisions have profound political impact on highly contestable issues.

*This ‘irrelevance’ may come as news to ConservativeHome readers.

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