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Labour’s 2023 policy positions on sex and gender – the case for urgent review 

Labour’s current policy positions on sex and gender

Labour’s 2023 policy positions on sex and gender – the case for urgent review


This is a resource for all our supporters engaging in conversations with those developing our party’s equalities, health and education policies and those drafting the new manifesto. We realise that the snap election date leaves little time to fully consider the evidence below. However, this reinforces our contention that, in light of new evidence, the manifesto must commit to a review of policies agreed a year ago, rather than just reproduce what are now outdated proposals.

Summary statement
The Labour Party must urgently review and revise the five National Policy Forum (NPF) policies relating to sex and gender, due to significant developments in these areas since they were formulated last year. Labour MPs and candidates risk appearing underprepared and uninformed if these policies are not revised. The party’s General Election Manifesto should commit to review them in the light of new evidence. We are Labour members and supporters and want a Labour win. 

1 Summary of UK Labour’s five July 2023 NPF commitments on “LGBT+”  

  • Labour does not support gender self-identification (self-declaration); the requirement to obtain a medical diagnosis of gender dysphoria remains an important part of accessing a Gender Recognition Certificate (GRC).
  • Labour believes there should be reform and modernisation of the Gender Recognition process, including diagnosis provided by one doctor rather than two, and a registrar instead of a panel. (Though not listed in the NPF, Labour also apparently still wants to remove the ‘spousal exit clause’).
  • Labour supports the single-sex exceptions in the Equality Act 2010 that allow for discrimination on the basis of biological sex in all contexts in which single-sex or separate-sex services or facilities are “a proportionate means of achieving a legitimate aim”. “Legitimate aim” includes everyday privacy, dignity and for reasons of safeguarding and women-only services.
  • Labour would introduce a “full, no-loopholes, trans-inclusive ban on conversion therapy”.
  • Labour will “equalise the treatment of all protected groups under hate crime legislation”.
  • “Labour will work to end discrimination against trans people, non-binary and gender diverse people”, and ensure they are treated with the same respect and dignity in society as everybody else.

2 Political Context, May 2024 

  • The Labour Party’s withdrawal of its previous commitment to gender self-identification (self-ID) is popular both within the country and party. Labour Together polling shows that a majority of Labour members (62%) believe there are some cases in which transgender women should be excluded from single-sex services and spaces, with only 22% disagreeing. The majority of Party members (67%) also agree with maintaining a medical diagnosis of gender dysphoria as part of the process to obtain a GRC.
  • Since the NPF meeting last July, political events, legal cases, and shifts in public understanding and perception about the conflicting rights of protected groups, have entirely changed the context in which these decisions were made. In particular, Wes Streeting has talked of the Cass Review as a watershed moment, and acknowledged that he has moved his position after listening to women in the Party who have been raising the alarm about sex-based rights and safeguarding.
  • The Cass Review’s specific findings of a lack of good quality evidence behind practices such as prescribing puberty blockers, and deviation from basic standards of care in gender healthcare, are also applicable to the current dash by Labour to legislate to ban Conversion Practices, without strong supporting evidence or thoughtful consideration about the risk of negative effects on children. 
  • Sex Matters have produced an incisive list of questions about sex and gender policies to ask candidates in the forthcoming General Election. Many other organisations will follow suit. 

3      Landmarks in law and debate since July 2023

  • In Scotland, the Parliament passed legislation on Gender Recognition Reform (GRR) that was incompatible with UK Equality law, resulting in a Section 35 order. Anas Sarwar has stated that Scottish Labour would not have voted for it if they had known what they know now. Keir Starmer and other shadow cabinet colleagues such as  Sarah Jones have  said “we have learned from observation of the GRR in Scotland”.
  • Several legal cases pushing to define“woman” have been undertaken, including For Women Scotland vs Scottish Govt, now awaiting Supreme Court consideration, leaving the legal definition currently in limbo. Labour welcomed the EHRC recommendation that government investigate the option of defining sex in law.
  • The final report of the Cass Review has brought about a seismic shift in public understanding about the lack of evidence and risks of “affirmative methods” in treating and supporting children and young people presenting with gender distress. Wes Streeting (UK Labour) and Jackie Baillie (Scottish Labour) have committed to its full implementation in government. Eluned Morgan, Welsh Government health minister,  has welcomed the report.  
  • The Cass Review highlighted the policy capture of the NHS’ gender identity development service (GIDS), and also observed that the ongoing practice in schools of “socially transitioning” children is “not a neutral act”; Karon Monaghan KC’s advice has raised the unlawfulness of the “Trans Inclusion Schools Toolkit” for schools, first introduced by Brighton and Hove City Council.
  • The alarming leaks exposing the World Professional Association for Transgender Health (WPATH), whose guidelines had previously been adopted by many NHS gender services, have increased recognition of the serious clinical risks of an  “affirmative only” approach.
  • Employment Tribunals concerning the right to hold gender critical beliefs have been ground-breaking, including Jo Phoenix vs Open University and Rachel Meade vs Westminster Council and Social Work England, the latter also awarding highly unusual exemplary damages. The Labour Party, along with other political parties,  could potentially be vulnerable to similar legal claims, especially in terms of the “mindset” described by the judge in the Meade judgement.
  • The United Kingdom Council for Psychotherapy’s recent withdrawal from the Memorandum of Understanding (MoU2) and Conversion Therapy Ban Coalition in the UK, shows that a ban on conversion practices is not a simple issue, and other professional bodies could follow.
  • The implementation of the Scottish Hate Crime Act, which includes transgender identity but not sex or non-religious belief, resulted in subsequent public confusion and negative media coverage, with JK Rowling’s public intervention, daring the police to arrest her, exposing the inconsistencies and deep conflicts within the legislation and potential negative consequences for the public. Pat McFadden (Labour’s National Campaign Co-ordinator) went on the record that Labour “is not planning to legislate for new crimes in this area”.
  • The Government announced a consultation, welcomed by Shadow Health Secretary Wes Streeting and by Keir Starmer, to change the NHS England Constitution to ensure the provision of single-sex services and wards.
  • The Government is calling for evidence of where public bodies are using incorrect guidance in relation to sex and gender.  Professor Alice Sullivan is leading an inquiry which aims to identify obstacles to accurate data collection and research on sex and on gender identity in public bodies and in the research system. 
  • The Charity Commission is running an ongoing investigation into controversial ‘trans rights’ charity for children, Mermaids; and growing numbers of public bodies are withdrawing from membership of Stonewall, which has been exposed for giving inaccurate advice about UK Equality law and for maliciously attacking the EHRC.
  • There is a dawning public awareness of the problems, especially for lesbians, of the grouping of LGB (representing sexual orientation) with TQIA+ (identities). Lumping together these two entirely different groups, including a mixture of protected characteristics (sexual orientation and gender reassignment) and of personal identities, hinders focus on specific groups and the development of targeted policies to support them.  In January 2024 the Labour Party finally relaxed its previous ban on gender critical voices having a stall at conference. LWD held two listed fringes at the Liverpool 2023 Conference addressed by senior Labour MPs but was blocked from having a stall. However, in 2024 LWD has hosted stalls at Scottish, London and North conferences and will have a stall at the Liverpool 2024 conference and a fringe and/or stall at Welsh Labour Conference later this year.

LWD looks forward to meeting more party members at Conference 2024- come and find our stall

 

4 Resulting problems with Labour’s 5 NPF commitments

Labour’s four LGBT+ commitments all prioritise TQ+. There is no specific programme to address the issues experienced by gay men and lesbians, a far larger demographic. The fifth commitment – to defend the single-sex exceptions – is contradicted by de facto self-ID – and is not deliverable unless sex is defined in law. Following the publication of the Cass Review in particular, all five commitments pose considerable problems and risks for Labour.  They were agreed during the period when the voices of women like ourselves, who speak for the majority of party members and supporters, were partially silenced. 

4.1 Proposed reform of the Gender Recognition Act 
  • The replacement of a panel with a registrar, and two doctors with one, to obtain a GRC has not been backed up by evidence of the need for these changes, nor of evidence that the current process is “onerous” or “dehumanising”.
  • Making the granting of a GRC the decision of one doctor could allow for willing GPs happy to sign off on the basis of self-identification alone.
  • Making the award of a GRC (a change to legal sex) easier contradicts and undermines Labour’s commitment to defend single-sex spaces. The current muddled legal context leads some to interpret a GRC as offering entry to women’s single-sex spaces. The original Gender Recognition Act 2004 was passed mainly because same-sex couples couldn’t get married at the time and therefore allowed someone changing their gender to stay married if they wished to do so. It was never intended to cover the range of situations and circumstances currently being demanded of it.
  • The spousal exit clause (not mentioned in NPF but still in the party’s briefings) is a vital temporary legal and financial protection for a small number of women and children and must be maintained, not abandoned. 
  • One possible proposed change, mentioned in one interview by Anneliese Dodds – to remove the requirement to show evidence of all past medical processes relating to gender – might possibly be safe without compromising women’s and children’s rights. However, the requirement for a medical diagnosis of gender dysphoria must remain. (Also, whilst NHS resources are to be used for surgery and lifelong medication, it is reasonable to ask for a medical diagnosis to demonstrate that these are justifiable treatments).  
4.2 Commitment to defend the Single-Sex Exceptions (in the Equality Act 2010)
  • Keir Starmer was clear on the need to defend single-sex spaces in his Good Morning Britain (ITV) interview on 30th April 2024. This was an important statement and should  be backed up by more Shadow Cabinet colleagues to ensure the message gets through, including acknowledgement of policy movement in response to evidence, so that journalists won’t keep asking about it in every interview. 
  • The NPF statement by Anneliese Dodds in the Guardian was also clear on the single-sex exceptions. This includes the right to run women-only services, spaces and sports on a biological basis: “We need to recognise that sex and gender are different – as the Equality Act does. We will make sure that nothing in our modernised gender recognition process would override the single-sex exemptions in the Equality Act.”
  • However, unless sex is established as “biological” i.e. “birth” sex, then males with a GRC may have the right to access to women-only spaces, which contradicts the NPF commitment. The Gender Recognition Act confusingly used the word ‘gender’ in some places and ‘sex’ in others, and service providers remain unclear about the law and fearful of their legal right to exclude males. Much recent training, delivered or influenced by Stonewall, has further confused and misled providers. 
  • As long as people can change the sex marker on their ID, and certainly if people can self-ID without any checks at all,  single-sex services and associations are difficult if not impossible to uphold.
  • Same-sex attracted women, i.e. lesbians, need a clear definition of sex in law in order to maintain their rights and to avoid erasure.
4.3 “Full Trans-Inclusive” Conversion Therapy/Practices Ban (CT/CP Ban)
  • Any attempt to provide evidence that CP is actually happening in modern Britain has failed – the 2017 “LGBT survey”, for example, failed to define key terms, and gathered data by handing out surveys at Pride marches to members of campaign groups pressing for a ban. 
  • This is an issue that is easier to claim support of than to implement. Hence the Conservative government with civil service legal resources has failed to create a set of definitions that work in practice without harm to existing therapeutic services and to gender-questioning young people. The lack of recent evidence of a need for this legislation also makes it a “solution in search of a problem”. Conversion Practice Ban Bills are uniquely difficult to draft. They have to create a new offence when there is an absence of recent evidence of the prevalence of the activities proposed for criminalisation, and still no workable definitions of ‘transgender identity’ which would stand up in law.
  • An Observer editorial recommended against such legislation. Leading KCs, including Jason Coppel, Aidan O’Neill and Sarah Vine, have offered opinions explaining that a ban would breach human rights and, in effect, be “unprosecutable”. 
  • Now that an election has been called, the Criminal Justice Bill and Alicia Kearns’ much revised amendment to bring in a CP ban will go no further. However, it is concerning that many in Labour were ready to support it despite the lack of evidence, unsuitable definitions and implementation issues noted above.
  • Anneliese Dodds has said that any legislation must still enable access to psychological therapies, particularly for children with mental health comorbidities. However, the potential for a chilling effect on clinicians, inappropriate criminalisation of legitimate therapies and amplification of homophobia makes this difficult, if not impossible, to solve within any currently proposed legislation. Debates in the Lords and Commons on the Burt and Russell-Moyle Private Members Bills have surfaced these contradictions
  • The final report of the Cass Review brings into question whether it is possible to create a legal framework that recognises the need for holistic therapeutic interventions that does not also create a chilling effect or criminalisation of professionals. Dr Cass made this even clearer in her session at Holyrood on 7th May, relayed in this thread explaining why Labour needs to review its NPF policy in the light of the Cass Review. Professional ethics boards and professional regulatory bodies are already in the best position to regulate inappropriate practices. 
4.4 “Equalising” hate crime laws
    • Although the need for review of the party’s hate crime policies is perhaps not as urgent as the need for review of its GRA reform and CP Ban proposals, it remains a highly controversial and complex area of law, particularly  in relation to the impact on women’s rights. Some of the  issues are covered by the policy collective Murray Blackburn Mackenzie. There has been significant misreporting on hate crime incidents and confusion about “non-crime incidents” which has led to inaccurate and misleading statistics about an apparent exponential rise in offences against transgender people being routinely quoted by politicians. This whole area is still fraught with potential unintended negative consequences, partly due to the inclusion of some, but not all, of the Equality Act’s protected characteristics, and merits further serious review and discussion
    • Pat McFadden has said that “no new legislation” is planned on hate crime which we welcome. However, hatred towards “transgender identity” is already an aggravating sentencing factor in law in England and Wales. Under Labour’s NPF proposals for equalisation with race and religion, we understand that this would now be also made an aggravated offence. We understand that this “equalisation” has an internal logic, was recommended by the Law Commission’s review, and is not seen as new legislation but as adjustments to existing law. Also, because sex and non-religious belief are not covered as protected characteristics in hate crime law in England and Wales, the party’s “equalisation” proposal does not currently include them. This anomaly is potentially a problem in our view, and detailed analysis is needed of the impact on all the protected characteristics, despite the possibility of the partial mitigation suggested by the Law Commission of protection for gender critical belief 
    • Unlike ‘gender reassignment’, the term ‘transgender identity’, is a loose and undefinable term. Therefore, although it is already used in UK law, we still have significant concerns about its further consolidation. 
    • We will monitor any detailed proposals closely for impact on women and in particular on same-sex attracted women, i.e. lesbians, and will actively contribute to any government consultations on them in due course and will also call for wider conversations on this issue. 
    • In Scotland, hate crime law is different and the controversial Scottish Hate Crime Act has run into serious problems in practice this year, including a public challenge from JK Rowling. Given that we are starting from this point, we support Scottish Labour in calling for sex to be added to that legislation, thus addressing some of the anomalies there. But this whole area of law is still fraught with potential unintended negative consequences, partly due to the inclusion of some, but not all, of the Equality Act 2010 protected characteristics, and merits further serious review and discussion.
    • Overall, however, we share the view of Woman’s Place UK that  hate crime legislation is not the best way to address the problem of misogyny. Also, if sex remains undefined, it’s highly likely that the legislation would be used against women. There is a strong case for better application  of existing laws and safeguards to address violence against women and girls rather than the introduction of new hate offences, which risk distracting an already overwhelmed and under-resourced criminal justice system.
4.5 Introduction of non-binary as a concept in law and policy
  • UK law has, to date, stood firm against the introduction of the concept in law that sex is not binary. However, a litigant has now been given leave to appeal this by the Appeal Court. Labour will likely find it hard to comprehensively define either “non-binary” or “gender diverse” and so the NPF commitment remains problematic. More information here.

5 Sport (not mentioned in the NPF but a fast-moving and topical area)

  • The NPF statement was silent on the issue of trans-identified males’ participation in women’s sport. However, the then Shadow DCMS Secretary, Lucy Powell, supported the decision of World Athletics to exclude “transwomen” from competing in the female category at international events, during Sunday with Laura Kuenssberg on 26th March 2023.
  • Keir Starmer backed the exclusion of trans-identified males from women’s sport in March 2024: “I think the important thing is that the sports governing bodies take a lead on this..and we’re supportive of what they’re doing, particularly in elite sport..common sense has to prevail in terms of safety and integrity of sport.”  
  • Keir Starmer’s answers still leave open the question of women’s and girls’ “non-elite sport” but there is overwhelming evidence about the lack of safety and fairness if males participate in women’s sport, from football to snooker to non-competitive running. 
  • Labour’s current policy is that sport is ‘sex-affected’ at all levels. This needs to be made clear in the manifesto and messaging as it is not clear right now. 

6 Schools Guidance/Social Transition (not mentioned in NPF)

  • The new RSHE guidance was published on 16 May 2024 and is very much to be welcomed. It was subject to a consultation period running to 11 July. Labour needs to make clear that, in government, they will honour this process. When DfE previously published draft guidance for schools on gender-questioning children it was welcomed by Bridget Phillipson (Shadow Secretary of State for Education).  Some Labour local authorities such as Brighton and Hove are supporting policies likely in breach of the law. It is crucial that a Labour government accepts the new evidence-based RSHE guidance and ensures that it is followed.

Conclusion

There is no shame in reviewing proposed policies in the light of new evidence. It is too late now for a full organised review before the General Election, but we very much hope that, after the election on 4 July, Labour will revisit and reassess all its policies in this area and make reference to doing so in its manifesto. 

Years of campaigning by increasingly discredited organisations like Mermaids, Stonewall and Gendered Intelligence on the topics of sex and gender has stoked fears among the public, including vulnerable young people. It has also left a whole generation of politicians confused by the topic of sex and gender. We hope that Labour will take the lead in enabling a shift in public awareness and understanding through a comprehensive review and implementation of improved policies, and in enabling respectful and open debate.

Labour's current position on sex and gender

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