Turning point has been reached in debate on sex and gender identity

On Wednesday the Equality and Human Rights Commission released two important documents signalling a turning point in the debate on sex and gender identity in Scotland and across the UK. The first was a letter from the chair of the Equality and Human Rights Commission, the cross bench former Lib Dem peer, Baroness Kishwer Falkner, commenting on the Scottish Government’s plan to reform the Gender Recognition Act 2004 and to adopt a policy of self-identification. The second was the EHRC response to the UK Government’s consultation on its plan to ban conversion therapy. 

In their letter to the Scottish Government the EHRC highlighted concerns about the implications of changing the criteria for obtaining a Gender Recognition Certificate and wrote of “the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point. The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.” 

In its response to the UK government consultation on Conversion Therapy, the EHRC said that it was supportive of measures to end harmful conversion therapy practices but emphasised that the significant and wide-ranging implications of the Government’s 5 proposals – for criminal and civil justice, clinicians and therapists, families and religious organisations – require careful and detailed consideration.  Concern was expressed about the lack of clear definitions of “conversion therapy” and of “transgender”, that the latter has no clear legal meaning, is potentially wider than the concept of gender reassignment in current UK law, and is understood by different people in different ways. 

The EHRC also noted the lack of evidence in relation to transgender conversion therapy and urged the UK Government to await the outcome of the Cass Review which is currently looking into gender identity services for children and young people. The EHRC want the UK Government to address sexual orientation and being transgender separately and not to proceed with legislation to ban Conversion therapy regarding the latter until detailed evidence-based proposals are available for proper scrutiny. They stressed the importance of any ban not preventing appropriate support for individuals with gender dysphoria. 

Like many who have tried in vain to have our legitimate concerns on these matters addressed respectfully I was pleased by these interventions. The hyperbolic response of some individuals and organisations has been disappointing, but, sadly, not surprising. It’s a shame that so many have sought to attack the EHRC as though it was a mouthpiece of the UK Government. It is not. Ironically, its attackers include bodies who are largely funded by the Scottish and UK Governments and haven’t themselves always seemed as independent of government as one might expect. 

The EHRC is an independent statutory body with the responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of people across England, Wales and Scotland. It was set up under the Equality Act 2010. Equalities are a largely reserved matter under the Scotland Act, but Human Rights are not, and a separate independent statutory body set up by the Scottish Commission for Human Rights Act 2006 shares responsibility for Human Rights in Scotland. Both organisations have been awarded ‘A’ status as National Human Rights Institutions (NHRI) by the United Nations. 

The director of the Scottish Human Rights Commission is appointed by the Scottish parliament after an open recruitment process. The director of EHRC is appointed by the UK Government’s Women and Equalities Minister after an open recruitment process and a pre-appointment hearing before Westminster’s Women and Equalities Select Committee and Joint Committee on Human Rights (JCHR). I know a little bit about this because as a member of JCHR I took part in Baroness Falkner’s pre-appointment hearing. One of the purposes of the hearing is to provide public evidence of the independence of mind of the candidate. Both committees found her to be a suitable candidate for the role of Chair. 

The Tailored Review of the first ten years of the EHRC had been published in November 2018 and criticised it for not being seen as a robust regulator or enforcer of the law. Accordingly, the MPs who questioned the Baroness were keen to see her ensure that she would up the EHRC’s game. I asked her a series of questions about the importance of treating all the protected characteristics in the Equality Act as equal and alluded to the toxicity of the current debate over sex and gender identity.  
 
Some of the ire directed at the EHRC seems to be because they have changed their position since 2017. I think there’s two reasons for this, first, the change of leadership at the EHRC has given us a woman who is willing to listen to the concerns of other women. And second, thanks to the dogged work of grassroots feminist and LGB activists, the era of ‘no debate’ is over. 

The most important thing about the EHRC intervention is the underlining of the importance of the “Established legal concept of sex.” Women’s rights and lesbian, gay and bisexual rights are dependent on the secure establishment of that concept in law. Unfortunately, many government funded bodies both in the women’s’ sector and in the LGBT sector have almost completely signed up to gender identity theory meaning they believe that the gender someone identifies with is more important than their sex. This has led to the absurd and unpleasant phenomenon of same sex attracted women being compared to racists by the head of Stonewall (herself a lesbian) for refusing to date men who identify as women. 

The rights of women and of same sex attracted people are not conditional on accepting gender identity theory. Yet many women are suffering bullying and harassment in their workplace as a result of their refusal to sign up to the supremacy of gender identity over sex. I have made no secret that I am one. Other high-profile cases include University Professors Kathleen Stock and Jo Phoenix and the artist Jess de Wahl. 

But there are many other women who are not in the public eye who write to me and organisations like Sex Matters and LGB Alliance about their predicaments. Charity workers, teachers, nurses, police officers and civil servants. Like the more high-profile women I have mentioned their lives have been dedicated to the feminist cause, lesbian rights and other important things like child protection. Yet now they are being called bigots and vilified for raising the sort of concerns that the EHRC have now legitimised. 

It was for this reason that veterans of the struggle for gay rights broke away from organisations like Stonewall and set up LGB Alliance. The founders, Bev Jackson and Kate Harris, who I am proud to call my friends, are both veterans of the women’s movement and the fight for gay rights. Bev was the only female founder of the Gay Liberation Front in 1970. She has also worked extensively in the field of refugee rights. Kate worked with Women’s’ Aid and is a former volunteer fundraiser for Stonewall. When gender identity theory started to take over, they tried to talk to organisations like Stonewall about their concerns but found the door shut in their face. 

Yesterday morning on the Today programme, a senior politician from the Scottish Greens was asked ‘why do you think its right to ignore people who disagree with you?’ She retreated into allegations of transphobia and misinformation. This person is deputy chair of the committee who will examine the GRA reform Bill in parliament. Her response does not augur well for the measured dispassionate examination we should expect from a parliamentary committee. It’s time for both Governments, parliaments and the cheer leaders for these reforms to play the ball and not the man, or woman, as it is usually women in the firing line. The tide is turning.