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Westlake Legal Group > Posts tagged "gender"

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 

Supreme Court Expansion of Transgender Rights Undercuts Trump Restrictions

WASHINGTON — The Trump administration’s socially conservative agenda has included a broad-based effort to eliminate transgender rights across the government, in education, housing, the military and, as recently as Friday, health care.

The Supreme Court most likely upended it on Monday.

The administration has been working to pursue a narrow definition of sex as biologically determined at birth, and to tailor its civil rights laws to meet it. Access to school bathrooms would be determined by biology, not gender identity. The military would no longer be open to transgender service members. Civil rights protections would not extend to transgender people in hospitals and ambulances.

But the administration’s definition is now firmly at odds with how the court views “sex” discrimination. In each of those settings, transgender Americans now probably have a stronger case to bring before the courts.

“Any law, and I think there are dozens, that says you can’t discriminate because of sex is going to have a reckoning with this ruling,” said Paul Smith, a professor at Georgetown Law School, who argued the landmark gay rights case Lawrence v. Texas before the Supreme Court in 2003.

Monday’s case was focused on employment law, a provision of the Civil Rights Act of 1964 known as Title VII. But Justice Neil M. Gorsuch’s opinion used language that is likely to apply to numerous areas of law where there is language preventing discrimination “because of sex” or “on the basis of sex.” Under the ruling, discrimination based on sexual orientation and gender identity ran afoul of the standard.

“What the court has done today — interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity — is virtually certain to have far-reaching consequences,” Justice Samuel A. Alito Jr. wrote in a dissenting opinion that specifically mentioned education and housing as examples. “Over 100 federal statutes prohibit discrimination because of sex.”

The ruling appeared to surprise officials across the administration. None of the agencies, including the Education Department, the Pentagon, and the Departments of Health and Human Services and Housing and Urban Development, that could be affected offered any comment beyond saying they were reviewing the decision.

President Trump offered a similar answer when asked by a reporter Monday afternoon. “They’ve ruled,” he said. “I’ve read the decision, and some people were surprised, but they’ve ruled and we live with their decision.”

ImageWestlake Legal Group merlin_173565759_2656dcf3-edcc-4258-bda2-ddf0f56e6db3-articleLarge Supreme Court Expansion of Transgender Rights Undercuts Trump Restrictions United States Politics and Government Trump, Donald J Transgender and Transsexuals Title IX (Gender Discrimination Legislation) Supreme Court (US) gender discrimination
Credit…Doug Mills/The New York Times

The Trump administration has issued a series of regulations curtailing protections for transgender Americans. It weakened protections for transgender employees of government contractors. It rescinded Obama-era guidance protecting transgender students’ rights to use a bathroom or locker room corresponding with their gender identity. It is considering a policy to allow homeless shelters to consider biological sex rather than gender identity in placement decisions, even if a transgender woman says she faces abuse if placed with men.

And on Friday, it erased requirements that doctors offer and insurers cover medically appropriate treatment for transgender patients.

But because many policies were all built around a particular definition of “sex,” they are now vulnerable, said Joshua Block, a senior staff lawyer with the American Civil Liberties Union’s L.G.B.T. & H.I.V. Project, who is involved in several cases involving transgender students. Those policies stem not just from Title VII but also from Title IX, part of a 1972 education law barring sex discrimination.

“All of the Trump administration’s actions have been built around this assertion that Title VII and Title IX provide no protections to L.G.B.T.Q. people,” he said. “It’s an Achilles’ heel that’s been built into every single thing they’ve done.”

Even critics of the decision acknowledged that it could reshape the law broadly.

“Gorsuch’s argument is an argument about the logic of what constitutes sex discrimination,” Ryan Anderson, a senior research fellow at the Heritage Foundation, a conservative think tank that has helped guide this area of Trump administration policy, said in an email. “And if the court is consistent, it would apply that logic to similar provisions. Alas, the court got that logic wrong, and that’ll have negative consequences down the road.”

Such changes to similar areas of law are not guaranteed or automatic. It is possible that agencies could reconsider their current regulations in light of the new ruling. But it is more likely that further changes will require litigation. Gregory R. Nevins, the Employment Fairness Project director at Lambda Legal, a gay rights group, said there were some narrow ways that administration lawyers might try to distinguish between the language of the employment law and the laws governing education, housing or health care.

“I’m sure they won’t just fold up their tents — they’ll make it as hard as they can, and that’s why I still have my job,” he said. “But I think the center’s about to set on that.”

The Supreme Court ruling is not expected to directly affect the Trump administration’s ban on transgender troops joining the military, although critics of the ban say the ruling may affect how lawyers argue the multiple lawsuits against the ban that are making their way through the courts. The decision may shift the legal standard needed to defend such a policy against constitutional claims of sex discrimination.

“Today’s ruling makes the military, so often a successful leader in ending discrimination in American life, an outlier amid a national consensus that arbitrary discrimination is harmful and wrong,” said Aaron Belkin, the director of the Palm Center, an advocacy group. “With transgender workers protected by federal law in all other sectors, the military’s transgender ban is now even harder to defend.”

The administration has made fewer policies affecting civil rights for gay, lesbian and bisexual people, but the court’s ruling is likely to expand protections for them, too. Even the Obama administration declined to write protections into its health care rules on the basis of sexual orientation.

But it has been the rights of transgender people that have attracted the attention of the Trump administration.

One of the first acts the administration took, in February 2017, was to rescind Obama-era guidance informing schools that transgender students should have access to school facilities, including bathrooms and locker rooms, that correspond to their gender identity.

In November 2019, the Education Department drafted a “statement of interest” with the Justice Department to defend a private Christian school in Maryland that was kicked out of a state voucher program in part because it says “God immutably bestows gender upon each person at birth as male or female to reflect his image.”

And just last month, the Education Department ruled on the side of a conservative Christian group that a high school sports policy in Connecticut that allows transgender students to participate in athletics based on their gender identity violates federal civil rights law because it put biological females at a competitive disadvantage. In its letter threatening districts with federal funding and legal ramifications, the department said that “permitting the participation of biologically male students” denied “female student-athletes benefits and opportunities.”

On Monday, advocates for transgender students said the tide had turned against Education Secretary Betsy DeVos.

“In March of 2017, Secretary DeVos told me that she was waiting for the courts to rule clearly before she would protect transgender students as they deserve,” said Eliza Byard, the executive director of GLSEN, an L.G.B.T. rights organization for students. “Today,” the Supreme Court “couldn’t have been more clear.”

Helene Cooper contributed reporting.

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.

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

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.

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

Victoria Hewson: A new High Court review could signal the end of Oxfordshire County Council’s Trans Inclusion Toolkit

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.

It was announced on Saturday that an application by a 13-year-old schoolgirl (known as Miss A) for judicial review of Oxfordshire County Council’s Trans Inclusion Toolkit has been accepted by the High Court.

This means that the case will proceed to trial, and that the girl’s claim, which has been supported by crowd funding and the Safe Schools Alliance, will be heard in full.

If she succeeds, it may lead to the council having to withdraw the toolkit, along with other local authorities that also use it. 

The toolkit is an alarming document. Its recommendations – for professionals working in schools, colleges, and educational settings – include:

  • A suggested script for schools to use to communicate to parents/carers, stating: “As a school/college/setting we recognise the right of all individuals to determine their own gender identity. We will fully support every individual in our school/setting to develop their own gender identity and expression including where this may involve transition”.
  • On toilets – “Children and young people are supported through the Equality Act 2010 to access the toilet that corresponds to their gender identity; so trans girls because they are girls, can use the girls’ toilets and trans boys the boys’ toilets.”
  • On changing rooms – “In all cases, trans children and young people should have access to the changing room that corresponds to their gender identity.”
  • On PE and fitness – “Schools should aim to reduce as far as possible segregating children and young people by gender.* Trans children and young people should be supported to equally access PE and where lessons are segregated by gender should be enabled to participate in the lesson which corresponds to their gender identity if this is what they request.”
  • On residential trips – “As far as possible, trans children and young people should be able to sleep in dorms appropriate to their gender identity. Some trans children and young people may not feel comfortable doing this and in such cases alternative sleeping and living arrangements should be made.”

All of this is based on some quite egregious misstatements of the Equality Act 2010, which the toolkit purports to be assisting schools to comply with.

The toolkit refers throughout to ‘gender identity’ and the concept of a ‘trans child’, and claims that the Equality Act underpins the recommendations made.

But the Equality Act 2010 contains no such protected characteristic of ‘gender identity’. It does include protected characteristics of ‘sex’ and ‘gender re-assignment’, but neither of these are the same as ‘gender identity’.

Furthermore, as set out in Miss A’s grounds for review, submitted to the court, the council did not take into account the privacy, dignity and safety of other children, or even the existing regulations that require schools to provide separate facilities for boys and girls over the age of eight. On these bases, her case is that the toolkit is unlawful.

It is welcome news that the judicial review is to proceed, and will at least shed light on the council’s processes and justifications for adopting this document and recommending that schools under its control follow its guidance.

The toolkit quotes activist organisations like Stonewall liberally, and while a number of local authorities, including Oxfordshire, are said to have contributed to its content, it has been suggested that it was produced by an employee of Stonewall.

Oxfordshire County Council (which is Conservative-dominated but under no overall control) proudly proclaims on its website that it was the joint winner of last year’s Stonewall Education Equality Index.

Before this case was initiated, the concerned parents who set up the Safe Schools Network had attempted to engage councillors in a discussion about the toolkit and the review process that had led to its adoption, but one member tells me they were met with obfuscation and dismissal. 

Perhaps the council should pay more attention to the interests of parents and children in the county, and less time engaging with Stonewall.

It is also notable that the council has been strongly criticised in the past for failings in safeguarding of children in an investigation into child sexual exploitation in the county.

Whether or not the judicial review is successful and the toolkit is withdrawn, voters and parents in Oxfordshire and the other local authorities that have adopted it should be asking serious questions of their councillors who have responsibility for education and safeguarding.

The use of Department for Education guidance, and documents like the Government Equalities Office’s LGBT Action Plan in support of the toolkit, also raise questions for those bodies. 

Up-to-date guidance from government on transgender issues in schools, in light of the real provisions of the Equality Act, is overdue. This judicial review of Oxfordshire County Council makes the case for the issuing of that guidance all the more urgent. 

_____

*In fact, of course, they are not segregated by gender (a contestable matter of social construct): they are segregated by sex (a matter of biological truth).

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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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Rebecca Lowe: The Right cannot afford to duck the debate about trans, sex and gender

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

An absence of discussion about sex — in the sense of biology, rather than shagging — is one of the many ways in which Conservative discourse remains starkly different from that of our friends on the left. It’s been hard to miss, for instance, the way in which such matters have become central to the Labour leadership contest.

Yes, this has largely consisted of the candidates attempting to ‘outwoke’ each other — rather than engaging in valuable substantive debate — but this itself exemplifies an increasingly serious societal problem we all face.

In response to Rebecca Long-Bailey’s claim that a certain set of people — best described as ‘gender critical feminists’, or GCs — have no place in the Labour movement, an impressive number of female party members have publicly asked to be expelled.

Ok, ‘gender critical feminist’ might sound like something you’d roll your eyes at, shouting at the screen, “For heaven’s sake! What are these lefties on about now?”. But the beliefs that GCs hold — that gender (as opposed to sex) is a social construct, and that one’s biological sex is not something that can be changed — were, until recently, extremely mainstream.

Indeed, I’d bet a considerable amount of money that most Conservative members and voters are actually GCs. Yet professing such beliefs has become, in many circles, social suicide; it can even get you in trouble with the law.

Check out the case, for instance, of Maya Forstater — a think tanker who was sacked for openly expressing such beliefs, and whose former employer’s decision to sack her was recently upheld by a UK court. And also two further cases — involving Harry Miller and Kate Scottow, respectively — that you might have noticed in the news last week.

Meanwhile, there are increasing instances of the ‘no-platforming’ of GC academics — women who often face physical threats, even to the extent of needing personal security guards on campus. And, meanwhile, an increasing number of ‘detransitioners’ are going public, against ongoing campaigns to keep them quiet.

These are mostly young adults who have started to realise the lifetime effects of the medicalised path they set out upon as children. They are recognising that an institutional avidity to prescribe them hormone blockers meant that their mental health concerns were left untreated, and that their confusion about their sexuality was deemed ‘fixable’.

Here, again, the strongest response has also come from the Left. There is a seriously impressive set of practical campaigners and theorists who are fighting, day in day out, on these matters — at events, in the courts, and online. And this charge has been largely been led by women, often gay women — brave, honourable people to whom we all owe a huge debt of gratitude, regardless of our own political allegiances, sex, or sexuality.

Meanwhile, people on the centre-right have largely been ducking the issue. And most men, regardless of their political persuasion, seem simply too scared to get involved. This just doesn’t seem good enough; if you’ve followed these matters properly, you’ll realise that it really isn’t.

Just before Christmas, therefore, my lawyer friend Victoria Hewson and I launched a small, non-funded campaign called ‘Radical’, aimed at fighting for truth and freedom in this arena. Although our campaign is non-party-political — and our focus so far has been on building alliances across the so-called political spectrum, alongside making the case to responsible people in government — we’d become particularly concerned by the way in which people on the ‘centre-right’ either didn’t seem interested in the topic, or didn’t want to shoulder the risks involved in speaking out. We hope to begin to rectify that.

Now, these matters are complicated and emotive, and I’m aware that I haven’t really explained, here, exactly what I’m on about. Which side is it that we’re on? You might well be wondering whether Radical is one of those nasty ‘TERF’ things, set on provoking hatred towards trans people.

Well, countering purposeful misdirection and unhelpful name-calling is half the battle, here. GCs like us (I hate labels, but have come to embrace the term out of the need for quick clarification) categorically do not hate any person, or any set of people.

Indeed, what we are fighting for is the adherence to truth that is necessary to any fight for justice and freedom. After all, without truth as a common ground, you cannot ever hope to persuade your opponents through rigorous argument. Instead, the most powerful person simply silences everyone else.

Alongside this commitment to searching out truth, Radical also standards for an appreciation of civility. To choosing to respect one other as the equals we all are, as human beings; to fighting for the right of any person to express themselves along the lines of whichever gender stereotypes they wish.

Of course trans people should be treated just the same as anyone else, all things being equal. But it is also the case that biological women need societal recognition of their right to certain single-sex spaces. And it is simply wrong to allow children to be subject to life-changing medical interventions to which they cannot in any possible sense consent. And the denial of the concept of biological truth leads only to an anti-vaxxing hellhole.

This debate, therefore, is anything but simple. It ranges from issues of free expression, to truth denial, to child abuse. It involves complex considerations of how the interests and needs of one set of people can be balanced against the interests and needs of another.

But several important concerns remain clear. And one of these is that we must begin to speak rigorously about these matters, not only because they are important, but also because such discussion is being purposefully suppressed. A powerful lobby has taken over, and is in the process of capturing our institutions — our schools, our universities, our police force, our healthcare services. It comes dressed in the language of rights; it comes with knives for our children, and refutation of the mental health concerns of our teenagers. It comes to take away our freedom, and crowd out our norms of civility and kindness.

Brave people on the Left have led the charge on this topic so far. Please, Conhomers, consider joining us in joining them against those who have hijacked this important debate. Armed with science and with compassion, we can work together on this, for the good of all.

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

BBC Underpaid Female TV Host, Tribunal Rules

Westlake Legal Group 00bbcdecision-1-facebookJumbo BBC Underpaid Female TV Host, Tribunal Rules Wages and Salaries Vine, Jeremy (1965- ) Television gender British Broadcasting Corp Ahmed, Samira (1968- )

The television host who took the BBC to court over unequal pay has won her case, in the first high-profile court case to be brought since the fallout over pay at the broadcaster more than two years ago.

Samira Ahmed, who was paid 440 pounds (about $565) per episode when she started hosting a program called “Newswatch,” argued before an employment tribunal that she should have been paid as much as Jeremy Vine, the host of another program, “Points of View,” who received £3,000 (about $3,850) an episode.

Both programs are about 15 minutes long and involve airing and discussing the comments of viewers. Ms. Ahmed’s program focuses on their thoughts on the news coverage. The program hosted by Mr. Vine deals with feedback on entertainment programs.

She was seeking almost £700,000 in backdated pay.

The BBC argued that Mr. Vine’s program required different skills because he was expected to be a friend to the audience in a way that Ms. Ahmed’s job does not, and so deserved to be paid more for the work he did.

The BBC has been grappling with complaints over salaries since at least 2017, when it first published the pay bands of its highest paid stars. The BBC is a public service broadcaster financed mostly by a television license fee paid by most households in the country and, as a result, often comes under criticism for the way it spends this money.

It published the salaries of its highest paid hosts in 2017 after the government made it a requirement of its governing charter, prompting an outcry over the lack of diversity in its highest ranks. This led to hundreds of pay complaints. The BBC’s former China editor, Carrie Gracie, quit in protest over not being paid as much as her male peers.

There are about 120 women considering collective action against the broadcaster over equal pay.

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

BBC Underpaid Female TV Host, Tribunal Rules

Westlake Legal Group 00bbcdecision-1-facebookJumbo BBC Underpaid Female TV Host, Tribunal Rules Wages and Salaries Vine, Jeremy (1965- ) Television gender British Broadcasting Corp Ahmed, Samira (1968- )

The television host who took the BBC to court over unequal pay has won her case, in the first high-profile court case to be brought since the fallout over pay at the broadcaster more than two years ago.

Samira Ahmed, who was paid 440 pounds (about $565) per episode when she started hosting a program called “Newswatch,” argued before an employment tribunal that she should have been paid as much as Jeremy Vine, the host of another program, “Points of View,” who received £3,000 (about $3,850) an episode.

Both programs are about 15 minutes long and involve airing and discussing the comments of viewers. Ms. Ahmed’s program focuses on their thoughts on the news coverage. The program hosted by Mr. Vine deals with feedback on entertainment programs.

She was seeking almost £700,000 in backdated pay.

The BBC argued that Mr. Vine’s program required different skills because he was expected to be a friend to the audience in a way that Ms. Ahmed’s job does not, and so deserved to be paid more for the work he did.

The BBC has been grappling with complaints over salaries since at least 2017, when it first published the pay bands of its highest paid stars. The BBC is a public service broadcaster financed mostly by a television license fee paid by most households in the country and, as a result, often comes under criticism for the way it spends this money.

It published the salaries of its highest paid hosts in 2017 after the government made it a requirement of its governing charter, prompting an outcry over the lack of diversity in its highest ranks. This led to hundreds of pay complaints. The BBC’s former China editor, Carrie Gracie, quit in protest over not being paid as much as her male peers.

There are about 120 women considering collective action against the broadcaster over equal pay.

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