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LWD responds to the UK Labour party’s “pivot” on sex and gender

This commentary plus summary constitute Labour Women’s Declaration’s response to the UK Labour party’s “pivot” on sex and gender.  This change was conveyed via a Guardian article by Anneliese Dodds, a Times Radio interview by Wes Streeting and an LBC phone in by Keir Starmer , following a new policy position agreed by the National Policy Forum over the weekend of 21-23 July 2023.

We find much that is very welcome – but also some elements that are a cause of considerable concern.  Our first response was in this thread on Twitter with a subsequent additional thread here.

For a quick summary click here or see end of this statement.

On the positive side, Labour’s new emphasis on distinguishing sex and gender is an important change of direction, after the confusion and conflation of the two over recent years which has made clear discussion of these issues almost impossible. Now that Labour has clarity about sex, and even mentions ‘biological sex’ as an explicit reality and as something separate from ‘gender’, the ground has been laid for further discussions about the way ahead in matters relating to sex and notions of ‘gender identity’.  Data should be collected on the basis of sex, not overridden by ‘gender’; rôles and measures intended to address women’s inequality should be properly reserved for women; etc.

Anneliese’s Guardian article also gives a welcome indication that Labour will support the clarification of sex in the Equality Act, as proposed by Sex Matters – (“Labour will defend those spaces, providing legal clarity for providers of single-sex services”). It is important that sex is clarified to mean biological sex – this is implied in her article with the reference to “places where it is reasonable for biological women only to have access”. This must also protect freedom of association of same-sex attracted people, given that the right of lesbians and gay men to same-sex gatherings and association has been severely eroded.

The retention of a medical process in the application route for a Gender Recognition Certificate – even if that process is as yet unclear and possibly less than adequate – does make very clear that Labour nationally is not choosing to head down the self-identification route that formed the basis of the Scottish government’s disastrous Gender Recognition Reform Bill, which was supported by Scottish Labour, and challenged by the UK government under section 35 of the Scotland Act, because of its conflict with the UK-wide Equality Act.  The recognition that a medical process is needed to “retain confidence in the process”, and the suggestion that there may be a bar on sex offenders applying for a GRC, suggests that Labour has heard at least some of the serious concerns being expressed over the past few years, in relation to safeguarding and meaningful procedures.

However, despite the NPF referring to single-sex spaces, Keir Starmer persists in referring to ‘safe spaces’.  This misses the point, and could leave the party open to accusations that it is accusing all trans-identified men of threatening the safety of women.  While it is accurate that many single-sex contexts have been established through a recognition of the potential danger that women face from men – trans-identified or not – the need and rationale for single-sex spaces is not confined to matters of safety but includes the privacy and dignity of women and girls, and much more.  Labour must recognise the wider reasons, including religious and cultural, for wishing to ensure single-sex provision of services, places of association, groups etc. The value of being able to share the commonality of experience, to talk together can not only be a beneficial process for those involved but also an essential way of improving services in the light of the experience of service users.The same is true for men, who tend to prefer, for example, single-sex hospital wards, and who can benefit from groups such as Men’s Sheds.

It was shocking to read Anneliese Dodds’ tweets referring to the so-called ‘spousal consent’ clause as being ‘outdated.’  It is impossible to understand how a mechanism for ensuring that a partner can leave a marriage or civil partnership, when the very basis of the contract is changed against their will, can be anything other than essential.  The entire purpose of this part of the Gender Recognition process is to ensure that there can be an annulment of the marriage when one party to the contract wishes to change their very identity and assert themselves as being someone other than the individual with whom their partner entered into a contract.  Annulment, rather than divorce, is a necessary route particularly for those whose religious or cultural context makes divorce unacceptable.  There is a need for community support for those whose relationships break down in this way, hence the importance of enabling an acceptable route out of the marriage/civil partnership.  The non-transitioning spouse has no power to ‘veto’ the transitioner’s application and grant of a GRC, merely to veto their own forced participation in a radically changed marriage/civil partnership contract; an interim GRC is granted to the applicant until the marriage is ended.

An omission from all the discussion of the working of the Gender Recognition Certificate process is the situation of detransitioners.  Given that the granting of a GRC is contingent upon a commitment to it representing a life-long commitment, GRC-holding detransitioners are left in an impossible situation.  It is not clear that they would be able to get a rediagnosis of ‘gender incongruence’ in relation to the legal sex recorded on their replacement birth certificates.  A more appropriate process is essential.

As yet we do not know if Labour intends there to be any guidelines for the qualifications or experience required of any doctor who may provide the diagnosis of  ‘gender dysphoria’. Given that there have already been issues, at the Tavistock GIDS clinic and in private ‘gender clinics’, of doctors willing to affirm a claimed ‘gender identity’ with no investigation of any sort, it is worrying that a single medical practitioner would be able to sign someone off as having the condition, with no clear test of accuracy, nor an assessment of the wider health context (as recommended in the Cass Report in relation to young people).

One of the issues many will be unaware of is that recognition of GRC-equivalents from elsewhere in the world depends on the process being similar to the UK version.  Reducing the medical input from two doctors to one would mean a number of other countries being added to the approved list.

The relevant diagnostic criteria are those of the International Classification of Disease (ICD-11), ‘HA60 Gender incongruence of adolescence or adulthood’, which provides a definition of “marked and persistent incongruence between an individual´s experienced gender and the assigned sex”, with ‘gender’ undefined.  However, “Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis” and there is meant to be exclusion of paraphilic disorders.  What check there will be on such diagnosis having been carried out correctly is unclear, although the registrar who is to replace the medical and legal expert panels will presumably (like a registrar for births, marriages and deaths) be expected to verify that the evidence provided is accurate. How this would work in practice is yet to be stated. Existing panels rarely refuse to grant a GRC; a single registrar might feel the weight of responsibility more keenly, and not grant a GRC unless certain of the merits of the application, so that could possibly be an advantage.

There are inaccuracies in the Guardian article, including the claim that the panel involved in the current process is made up of ‘anonymous doctors’ (it is a group of doctors and legal experts).  The oft-repeated claim that the process is ‘intrusive, outdated and humiliating’ has never had evidence to support it – see, for example, this article by Fair Play for Women (particularly the latter sections) for clearly laid-out reasons why the process is no more intrusive and humiliating than many other processes that individuals have to navigate.  We believe that Labour politicians, by repeating these unsubstantiated claims about the process, and about the situation for trans-identified people, contribute to fear-mongering amongst vulnerable young people.

Section 22 of the Gender Recognition Act makes for significant challenges to the operation of the Equality Act 2010, “effectively providing an ‘invisibility cloak’ for the characteristic of sex for one group of people” (from an article by MurrayBlackburnMackenzie, which explains the extent of the problems raised by this).  This means that the single-sex exceptions are difficult to implement fully, and it is essential that this issue is addressed for the promised clarity around these exceptions to be possible.

Overall, we are pleased to see the abandonment of the commitment to self-ID and the recognition of the reality of biology.  It needs to be backed up by a clear commitment to allowing free speech on these matters in the party and PLP.  It will then become possible to resolve the remaining policy issues in an open, rational and adult manner.

The announcement refers to changes to the procedure for obtaining a GRC and it remains to be seen if those proposals would increase the numbers opting to obtain certification. Currently a small minority of those identifying as ‘trans’ do so.

Meanwhile, ‘gender identity’ doctrine is in reality in effect already, despite the protections in the Equality Act, as a result of the ubiquitous ‘policy capture’ which is very widely and deeply embedded.

The Labour Party has not said that it has dissociated from Stonewall, so as far as we know, and continues as a “Diversity Champion” with all that entails, alongside hundreds of organisations, including many government departments, quangos and bodies providing public services. These “Diversity Champions”, are overtly committed to the ‘law as Stonewall would wish it to be’, so that their policies are quite at odds with the Equality Act 2010 with regard to the protected characteristic of sex. As we have said in our blog on Stonewall, the party needs to review its membership of this discredited scheme in terms of value for money and reputational damage. Continuing with membership ties the party’s hands to a policy direction which it has now rejected. No political party should pay a lobby group to operate inside it.

The views of LWD and others sharing our outlook must be included in dialogues within the party over the coming years, as the ramifications and unintended consequences of this policy-capture are dealt with.  Such dialogues must begin immediately, so that the Labour Party gains a better grasp of these issues in order to be ready for government. We look forward to making a start during our two listed fringe meetings at the party’s annual conference in Liverpool, and at local and regional meetings. We will continue to assist the party’s policy makers to meet expert policy analysts, and to host cross-party and Labour only expert briefings at Westminster, and also where possible at the Scottish parliament and the Senedd.

An apology for the years of abuse suffered by so many women within the party would of course be appreciated, given that what we have been abused for saying is now party policy.  But the most important thing for us is for Labour to engage properly with our arguments and evidence in order to develop appropriate equality impact assessed policies for government. We speak for the majority of Labour voters and members; LGBT+ Labour and other lobby groups like Stonewall campaigning within the party are now the outliers. This  “pivot” is only a first step. If the party leaves all the remaining issues above unresolved or tries to fudge them it will continue to be ambushed during the general election campaign by the simplest of questions.

We want to see a confident, well-informed party create clear and rational policies ready to take us into effective and fair government.

In summary

We welcome –

  • Rejection of self-ID as Labour’s policy: this is a major and significant shift.
  • Labour’s new emphasis on distinguishing sex and gender.
  • Indication of support for legal definition of sex in the Equality Act to make the operation of the single-sex exceptions (SSEs) more effective.
  • Wes Streeting’s account of changing his mind when he realised that he needed to listen to women.
  • Reference to the need to include consideration of sex offences in granting GRC.

Concerns/questions/flaws in Labour’s proposals –

  • Spousal exit clause – not a veto, but a method of initiating a process to ensure basic rights for a spouse and needs to be retained not scrapped.
  • NPF mention of need to look at international evidence: little comparable evidence is available, but there is emerging evidence of self-ID and puberty blockers being withdrawn in countries where previously available.
  • Needs of detransitioners are not mentioned but must be understood and addressed.
  • No mention of Section 22 of the GRA, which creates problems for SSEs, “effectively providing an ‘invisibility cloak’ for the characteristic of sex for one group of people”, see article.
  • Keir Starmer’s reference to “safe spaces”, despite the correct term being single-sex spaces (needed by women for dignity, privacy and more).
  • No rationale yet provided for one doctor rather than two; also concerns about lack of specification in qualification criteria for doctors to provide the diagnosis, given the prevalence of private doctors willing to supply report on request.
  • Reduction to one doctor opens door to acceptance of more countries onto the approved UK list for apparent GRC equivalence.
  • Inaccuracies in Guardian article, including claim that Panel involved in current process is made up of ‘anonymous doctors’ –  it is a group of doctors and legal experts.
  • Claim that “The process is intrusive, outdated and humiliating’ has never had evidence to support it – see, for example, this article by Fair Play for Women (particularly the latter sections).
  • Using inaccurate language like “futile indignities” contributes to fear mongering.

Labour Women’s Declaration Working Group

2nd August 2023

 

 

 

 

 

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