Founded by two lesbians, Bev Jackson (who in 1970 was a founding member of the UK Gay Liberation Front) and Kate Harris (who was formerly an active supporter of, and fundraiser for, Stonewall).

Supported by Aubrey Walter, one of the founders of the UK Gay Liberation Front, and by many former champions of Stonewall, who see it as the heir to the early gay and lesbian rights movement.

All the other groups that used to support LGB people have switched their attention to the promotion of gender-identity theory, which LGB Alliance regards as regressive and homophobic.

Email: info@lgballiance.org.uk

The post LGB Alliance appeared first on Sex Matters.

Under the Scotland Act which governs devolution the UK Government has two routes to intervene to prevent the Royal Assent of the GRR (Scotland) Bill:

• The Attorney General, Victoria Prentis, can send it to the Supreme Court (using Section 33 of the Scotland Act) if she thinks the bill will directly relate to matters reserved to the UK.
• The Secretary of State for Women and Equalities, Kemi Badenoch, could send the Bill back for reconsideration (using Section 35) if it adversely modifies the law relating to reserved matters.

They both have four weeks to do this. This post sets out what they should be thinking about.

Is changing legal sex reserved?

Matters that are reserved for UK legislation are listed in Schedule 5 of the Scotland Act.

They include such things as tax and fiscal policy, data protection, the armed forces, weights and measures and almost all aspects of equal opportunities.

Although it has been assumed by the Scottish government that the matter of legal sex change is devolved, that may not be the case. 

The Scottish Parliament is not free to redefine pounds and ounces, litres, grams or miles. Is it really free to redefine what a woman is?

Sex is, after all, a protected characteristic.

The Policy Memorandum for the bill states:

“The Scottish Government aims to create a more equal Scotland where people and communities are valued, included and empowered and which protects and promotes equality, inclusion and human rights. The National Performance Framework sets a national outcome for human rights: ‘we respect, protect and fulfil human rights and live free from discrimination.’ In line with this, the policy of the Bill is to improve the process for those applying for legal gender recognition as the current system can have an adverse impact on applicants, due to the requirement for a medical diagnosis and supporting evidence and the intrusive and lengthy process.”

That locates the purpose of the bill squarely inside equal opportunities.The work of scrutinising the bill was given to the Equalities, Human Rights and Civil Justice Committee, which “focuses on: equal opportunities matters, human rights matters and civil justice matters including debt, evictions and family law”.

Victor Madrigal-Berloz, the UN independent expert on sexual orientation and gender identity – who was invited to address the Committee twice – has made the case for this legislation on the basis of non-discrimination and equal opportunities. He argued that:

“There are suggestions to postpone its consideration and/or weaken its contents. I am concerned that these efforts may respond to erroneous information based on the stigma and prejudice that have long permeated efforts to deny legal recognition to persons based on their gender identity, and thereby deny them equal access to services and the full enjoyment of their human rights.”

He also claimed that “UN Treaty Bodies and other mechanisms have consistently affirmed in their jurisprudence that, just like race, sex, colour or religion, gender and gender identity and expression are prohibited grounds for discrimination”.

Issues of non-discrimination related to race, sex, gender reassignment and religion are reserved to the United Kingdom as part of equal opportunities.

During the debate the Scottish Government’s Cabinet Secretary, Shona Robison, was adamant that the bill does not change anything about the Equality Act, saying that “absolutely nothing in the Equality Act is affected by this Bill. I cannot be clearer than that… we are not able to do that. We do not have the competence to do that.”

She advised that amendments clarifying this should be rejected because of constitutional concerns. But she did promote the single amendment that was agreed concerning this issue, namely to produce guidance about the Act in consultation with statutory bodies concerned with equality and human rights.

She specifically said they would do this with the EHRC, the body responsible for UK-wide equality law, further suggesting that this legislation is primarily concerned with equal opportunities.

Does the GRR Bill change the Equality Act?

Amendment 15A to the GRR Bill, agreed at Stage 2 before the Haldane judgment (the FWS Judicial Review) was published on 13th December, states:

“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

That is technically true: the bill doesn’t change any of the words or mechanisms of the Equality Act, and if it purported to, the provisions doing so would indisputably be ineffective. But the Haldane judgment suggests that the bill may nevertheless make profound changes to how the Equality Act operates. 

The issue in the FWS case was “whether or not, as a matter of law, the definition of ‘woman’ in the 2010 Act includes those persons holding a GRC [gender recognition certificate] stating that their acquired gender, and thus their sex, is female”. Haldane says that it does, because the UK legislators at the time understood the action of the Gender Recognition 2004 as it had been enacted, and did not explicitly state that the Equality Act relates to biological sex (this judgment may still be appealed).

Thus, according to Lady Haldane’s judgment the words relating to the protected characteristic of sex in UK equality law (the Sex Discrimination Act 1975 at the time) were redefined at the point when the GRA 2004 was passed, and this new meaning was subsequently incorporated into the Equality Act. 

This has the result that the words “female” and “woman”:

• include male people who met the conditions in Section 2 of the GRA 2004 (diagnosis and two years living in role) and who had successfully applied for a GRC
• exclude female people who met the conditions in Section 2 of the GRA 2004 and who had successfully applied for a GRC and been issued one by the Gender Recognition Panel.

And vice versa for the words “male” and “man”.

However, the drafters of the Equality Act 2010 cannot possibly have written it with the GRRA (Scotland) 2022 Act – which repeals Section 2 for Scotland and replaces it with different criteria – in mind. 

The question that promoters of the Bill have carefully avoided in all of the debates is whether a GRC issued by the Registrar General for Scotland is intended to have the same impact on the Equality Act as a GRC issued by the UK Gender Recognition Panel.

There are two options for interpretation here: 

• Option 1: The Gender Recognition Bill does not affect the operation of the Equality Act 2010 (which is a reserved matter). Therefore the definitions of man, woman, male, female remain as they were before the Bill and take into account only GRCs issued by the UK Gender Recognition Panel according to the existing conditions.
• Option 2: The Gender Recognition Bill does effectively change the definitions of man, woman, male, female in the Equality Act by adding to it a person who has acquired their sex via GRC issued by the Registrar General for Scotland according to the less exacting standards in Section 8A of the GRR (Scotland) Bill.

The Scotland Act states in Schedule 4, Paragraph 2:

(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.

(2) In this paragraph, “the law on reserved matters” means –

(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and 

(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter

The question of the definition of the protected characteristic of sex is clearly a reserved matter.

However, on the face of it the GRR Bill does not repeal or alter Section 9 of the GRA, which states:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

This suggests that it envisages, and promises to applicants that they are getting a fully functional GRC that has the same effect as a UK GRC “for all purposes”.

In fact as the Forstater judgment confirms (at paragraph 97), there is a missing word here. For all purposes in the GRA means for all legal purposes (apart from where there are exceptions), and the Scottish Government can only legislate for devolved legal purposes.

Option 2 might put the Bill outside the competence of the Scottish Government. 

Alternatively, we might read Section 9 as saying that a GRC issued by the UK GR Panel changes a person’s sex for all [legal] purposes [under the jurisdiction of the UK government], and a GRC issued by the Scottish registrar general changes a person’s sex for all [legal] purposes [under the jurisdiction of the Scottish Government]. 

Option 1 would keep the Bill within the competence of the Scottish Government, but would mean that it offers only a GRC-lite, which for example changes a person’s sex for the purpose of laws related to marriage, but not for laws and policies (and associated administration) relating to tax and pensions.

The Scottish Bill repeals large parts of the original GRA for Scotland, and the First Minister has stated that people living in Scotland will not be able to obtain a GRC from the UK Gender Recognition Panel, once the Scottish version is open. (Note: shortly after this blogpost was published on 22nd December Shona Robison contradicted the First Minister and her own previous statements, telling MSPs that the UK route would remain open.)

If a Scottish GRC changes a person’s sex only in relation to legal matters that are under the jurisdiction of the Scottish Government, and it is the only option available in Scotland, this would put Scotland outside of the margin of appreciation of the ECHR judgment in Goodwin v UK [2003], which led to the passing of the Gender Recognition Act, and which specifically included pensions (an area of legislation reserved to the UK). 

Considering adverse effects

The Scotland Act gives the UK Secretary of State the power to intervene in certain cases. Under Section 35, if a Bill contains provisions –

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters

The Secretary of State may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent, and send it back for reconsideration. She has four weeks to do this. This may happen as many times as necessary until the issues are resolved. 

The unresolved issue of the interaction between the Act and reserved areas of legislation, including but not limited to the Equality Act, gives reasonable grounds for making such an order. 

The order could ask the Scottish Government to clarify via legislative amendments whether the legislation is intended to operate according to

• option 1 (applies only to devolved matters) or
• option 2 (also applies to reserved matters), specifically the definition of “sex” for equal opportunities, data protection, and tax and benefits.

The Attorney General could then decide whether these areas of the Bill are outside the legislative competence of the Scottish Parliament and may refer the question to the Supreme Court.

If it is determined that the whole Bill and areas within survive the challenge about being reserved, specific adverse impacts should still then be considered (in relation to Section 35 of the Scotland Act). These include: 

• adverse impacts on administrative coherence
• adverse impacts on the UK government’s ability to promote equal opportunities for biological women nationwide
• adverse impacts on transgender people in Scotland
• adverse impacts on other users of single-sex service.
• adverse effects on women and girls in relation to sex discrimination protection 
• adverse impacts on employers and other data controllers
• adverse impacts on providers of single-sex services.

If the UK government has an interest in advancing the interests of biological women nationwide, then the FWS case and this new bill will significantly hamper positive measures in Scotland. The UK government might conclude that the GRA as previously in force strikes the right balance for equal opportunities, and that any change would be undesirable. 

The adverse effects on single-sex services in practice, though much discussed, will be subtle because there is already so much confusion, and as Reem Alsalem noted, because of lack of data. Service providers may be able to use Schedule 3 Paragraph 28 of the Equality Act to exclude transgender people. This, however, will be difficult since, according to Lady Haldane’s judgment, “single-sex services” in the Equality Act already accommodate the idea that sex is merely what is written on a piece of paper and does not relate to a person’s body. This makes the single-sex exceptions practically unworkable.

The four-week time limit for this intervention means there will be leeway on how it is assessed, with the Secretary of State making a reasonable assessment of what is likely to happen, rather than having to rely on hard evidence (one piece of evidence she might consider is our single-sex services survey).

The more immediate and clear-cut impact is likely to be via employers, HMRC and the DWP, who are all required to record and use a person’s sex as modified by a GRC.

Catch-22

Information about a person’s sex is widely collected, including specifically in relation to employment, tax and benefit records. 

If the GRR Bill is to remain compliant with the Scotland Act, it will not change a person’s sex for these purposes, which are reserved. 

However, anyone who has information about an employee’s sex (which is a routine part of their records), and who shares that data, will be committing an offence under Section 22 of the Gender Recognition Act 2004 (unless this disclosure is covered by one of the very limited exceptions).

The application of the bill to tax, benefits, pensions and employment records will affect all people with Scottish GRCs in their everyday life, and all the institutions they interact with. There needs to be clarity from day one about whether a Scottish GRC leads to changes in these records.

Employers, HMRC, the DWP and other data controllers who hold information about people with GRCs already take elaborate measures to protect data relating to holders of GRCs being shared, and to protect their own employees from coming into contact with this data and thereby being exposed to potential legal liability. This tends to involve physical measures such as locked filing cabinets, and computer systems that flag up people with sensitive data and constrain access to their data; for example, see R (on the application of C) v Secretary of State for Work and Pensions [2017].

However, these measures cannot sensibly be applied to people whose sex has not changed for the legal purposes relevant to that organisation. 

This analysis suggests HMRC and DWP will not be able to lawfully change a person’s sex (attached to their National Insurance number) without a GRC issued under the jurisdiction of the UK Government. 

But the GRR Bill would make it a criminal act for HMRC or DWP staff to share information about the sex of a person with a Scottish GRC (with very limited exceptions), even though it would have to be on the face of their records. 

This is a complex, expensive and perhaps insoluble practical problem, and attempting to fix it will incur significant public cost. That cost should be considered and plans put in place before the bill is enacted. 

The same legal jeopardy would also be experienced by the person’s employer, and by any service provider that routinely collects data on sex. There will also be private costs for employers needing to comply with Section 22 while also recording a person’s original sex in relation to reserved legal purposes. These costs should be considered and plans put in place so that employers and other data controllers understand the implications before the bill is enacted. 

These highly likely complications mean that people with Scottish GRCs may face increased discrimination because of the legal status conferred on them by the GRR Bill – their sex has not changed for many official purposes, but their information has become a criminal-liability risk to manage. That will make them frightening to employ and deal with. These impacts on holders of the certificates should be considered before the bill is enacted.

Among those likely to be harmed by this legislation are trans people in Scotland, because their legal status will be extremely uncertain and unworkable. Some of the people taking up these certificates may be as young as 16. It should be clear to these young people, and to all holders of these certificates, how they fit within legal frameworks. 

Why so much uncertainty?

The uncertainty surrounding the Bill currently makes it impossible to adequately assess these adverse impacts. 

Specifically, there is uncertainty about:

• the intention of the Bill (is it Option 1 or Option 2?)
• the Haldane judgment (will it be appealed, and if so will it be upheld or overturned?)
• steps the UK government may take to clarify the relationship between the GRA 2004 and other legislation where sex matters, including the Equality Act, by using Section 23 of the GRA (our parliamentary petition on this has more than 50,000 signatories).

The process of stopping royal assent and sending the bill back can be used to reduce uncertainty by identifying it, clarifying it and coordinating between the UK and Scottish governments.

But at the same time the UK Government should take this issue decisively in hand and make clear that biological sex and gender reassignment are separate protected characteristics in the Equality Act.

The post The question for the next four weeks appeared first on Sex Matters.

But on 13th December a judge in Scotland pronounced that Equality Act does not recognise biological sex as a protected characteristic. This judgment might be appealed, but we are calling on the UK government urgently clarify the law to make clear that biological sex is a protected characteristic.

Why is this important?

There are lots of reasons to sign the petition and to tell people about it.

What are we calling for?

We are calling on the Minister for women and equalities to use the power provided by S.23 of the Gender Recognition Act to amend the Equality Act by adding this amendment:

The post Clarify the Equality Act: sign the petition appeared first on Sex Matters.

On 6th September 2022, the World Professional Association for Transgender Health (WPATH) published its updated Standards of Care: Version 8.

WPATH was founded in 1979 as a self-regulated membership body. Its stated purpose is to “promote evidence-based care, education, research, advocacy, public policy, and respect in transgender health”. There have long been concerns that the organisation acts more as a partisan lobby group underpinned by gender ideology, instead of a body driven by medical evidence. Many of the senior members of WPATH identify as “trans” or “non-binary” themselves or are gender activists. Susie Green, the CEO of the organisation Mermaids, sits on the body responsible for revisions to the Standards of Care.

The Standards of Care are not official standards, but are influential around the world. WPATH calls them “internationally accepted guidelines”. The NHS refers to the WPATH Standards of Care in a variety of medical documents (including the previous service specification for the Tavistock Gender and Identity Development Service clinic). The Scottish government also relies on them in its decision-making. The Standards of Care featured heavily in the significant case of Bell v Tavistock. These guidelines have been used by numerous private health clinics throughout the UK, to justify irreversible treatment on children and young people.

What is new and worse in version 8

The latest version of the WPATH Standards of Care is extremely concerning in terms of medical evidence, ethics and child safeguarding. The most concerning aspects are:

1. Ideologically driven language – The guidelines feature language based in ideology, rather than medicine or biology, throughout. For example, irreversible medical and surgical interventions are referred to as “gender-affirming health care”. Double mastectomies are called “chest masculinization surgery”. Ideological terms such as “cisgender” are used, as well as the scientifically and factually inaccurate term “sex assigned at birth”.

2. Removal of minimum ages for irreversible medicalisation – The standard does not place any weight on nuanced concern for the welfare and wellbeing of vulnerable children. It does not consider that gender dysphoria is a mental-health symptom and many young people have co-morbidities such as autism and mental-health diagnoses. The guidelines have removed any minimum age limit for a child to be given puberty blockers, cross-sex hormones or sex-reassignment surgery (so long as that child has reached ‘Tanner Stage 2’ of puberty, which can be as young as nine years old). Interestingly, minimum ages had been included in the originally published document before these were quickly removed via a ‘correction’ online. The guidelines state that double mastectomies, euphemistically called ‘chest masculinization surgery’, “can be considered in minors”. Equally, ‘vaginoplasty’ may be considered for under 18-year-olds. The guidelines make it clear that there should be no requirement for a child to have taken cross-sex hormones prior to surgery, “if not desired” by a child – emphasising the consumeristic nature of these guidelines. Hormone treatment is recommended even though it can cause infertility

3. Chest binding and genital tucking for children – Healthcare professionals are instructed to provide education to children on both ‘chest binding’ and ‘genital tucking’, on the basis that this will provide “comfort” and “lower rates of misgendering”. Chest binding can cause pain, infection and even fractures and the tucking can cause decreased sperm concentration.

4. Alienation of parents – Healthcare professionals are advised to “challenge” parents who are unsupportive of their child medically transitioning. Equally, they are recommended to prescribe hormone treatment for children without parental involvement, if such involvement would be “harmful or unnecessary”.

5. Focus on irreversible surgery – The guidelines provides a ‘shopping list’ of recommended surgery for children and adults with ‘trans’ identities. These include, but are not limited to:

6. Abandonment of mental-health safeguarding – The guidelines explicitly state that therapy or counselling should “never be mandatory” before prescribing irreversible medication or surgery, including for children. Therapeutic professionals are told that they must not impose their own narratives or preconceptions, yet are also told that they must be “gender affirming”. These principles are fundamentally incompatible.

7. Disregarding of mental ill-health – Clinicians are advised that not all mental illness “can or should be resolved” prior to prescribing irreversible medication or surgery. The standard recommends that hormone treatment should not be withheld simply because a child has a ‘neurodevelopment condition’.

8. Eunuchs – A completely new chapter is dedicated to ‘Eunuchs’ who are defined as individuals who are “assigned male at birth and wish to eliminate masculine physical features or genitals”. The guidelines appear to support individuals who seek “castration” and they are now deemed to fall under the “gender diverse umbrella”. From an ethical and therapeutic standpoint, this is deeply concerning.

9. Patients in prisons and psychiatric hospitals – WPATH recommends that staff providing care to individuals resident in prisons or psychiatric hospitals should support them with “gender-affirming surgical treatment… when sought by the individual without undue delay”. This instruction for an unconditionally affirmative approach appears to throw any semblance of safeguarding or medical caution out of the window.

10. Ignoring the lack of studies – All of the above is recommend, notwithstanding the fact that WPATH acknowledges that “the number of studies is still low”, that “there are few outcome studies that follow youth in adulthood” and that “no clinical studies have reported on profiles of adolescents who regret their initial decision”.

WPATH diverges from the evidence

The recommendations of the WPATH Standard of Care are in stark contrast to the recommendations made by Dr Hilary Cass in her interim report on the treatment of gender-questioning children by the NHS. She states that:

“Any child or young person being considered for hormone treatment should have a formal diagnosis and formulation, which addresses the full range of factors affecting their physical, mental, developmental and psychosocial wellbeing.”

The UK’s National Institute for Clinical Evidence (NICE) has undertaken systematic evidence reviews on the use of puberty blockers and feminising/masculinising hormones in children and young people with gender dysphoria. The available evidence was not deemed strong enough to form the basis of a policy position. The Cass Review is continuing to develop qualitative and quantitative research to uncover patterns and quantify problems, to address the shortcomings in evidence.

Professor Michael Biggs’* new paper on the history of paediatric gender medicine scrutinises the evidence to support treating children with puberty blockers and cross-sex hormones. He finds that “the intervention was justified by claims that it was reversible and that it was a tool for diagnosis, but these claims are increasingly implausible”. 

The WPATH Standard undermines the safeguarding of some of society’s most vulnerable children and young people.The UK National Health Service and medical professions should not adopt the new WPATH Standard as a guide to the medical and therapeutic treatment for gender dysphoria, or in commissioning the replacement service for GIDS. The Cass Review is considering evidence in relation to hormone treatment for children. NICE should also undertake an evidence review of surgical and hormonal treatment for adults.

* Michael Biggs is a member of Sex Matters’ board.

The post What’s wrong with WPATH version 8? appeared first on Sex Matters.

The meaning of the protected characteristic of “sex”, they said, is ambiguous and does not correspond to biological sex (and therefore the single-sex service exceptions are complex and difficult to use).

We disagree.

How does the Equality Act 2010 define sex?

Nicola Newbegin began by acknowledging that section 11 of the Equality Act 2010 provides that sex is “a reference to a man or a woman” and that section 212 gives the definitions “a man is a male of any age” and “a woman is a female of any age”.

But, “The Act provides no further guidance”, she said, and “importantly, there is no definition of biological sex”.

Is a definition of these plain English words really needed? The ordinary meanings of “male” and “female” seem straightforward enough to anyone who has kept pets, or had a sexual relationship. 

Newbegin said that Section 7 (Gender reassignment) “talks about the physiological or other attributes of sex” and that this suggests that “the Equality Act recognises sex as being more than purely biological”.

Robin White criticised the EHRC for publishing new non-statutory guidance on single-sex and separate-sex services which clarifies upfront that “sex” is understood as a binary, meaning biological sex, saying:

“Understood by whom, and where?… This concept of biological sex appears, apparently from nowhere. It isn’t in the Act. It hasn’t appeared in the guidance, it doesn’t appear in the statutory code, it just seems to have popped up from nowhere.” 

Did biological sex really only pop up recently?

Certainly this was the view of a working party of the Employment Lawyers Association, made up of White and Newbegin, together with Paul McFarlane, Harini Iyengar and Shah Qureshi. They found the law confusing and concluded in their submission to the Women and Equalities Committee in November 2020 that the meaning of “sex” was uncertain.

But the meaning of “sex” is not unclear in law. As the judgment in Forstater in June 2021 confirmed:

“The Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law … The leading case is still Corbett v Corbett [1970] 2 All ER (at 47, 48 and 49) per Ormrod J. Its effect was considered by the House of Lords in Chief Constable of West Yorkshire Police v A (No.2) [2005] 1 AC 51…”

That Employment Appeal Tribunal accepted the arguments of Ben Cooper QC and Anya Palmer about sex and gender in the law, and rejected those of Jane Russell, counsel for the respondents:

“Ms Russell sought to persuade us that the decision in Corbett is outdated and should not be followed, particularly in light of the GRA under which a person who obtains a GRC does ‘become for all purposes’ the acquired gender. We cannot see any real basis on which this appeal tribunal could disregard Corbett especially given that the House of Lords’ comments in Chief Constable of West Yorkshire Police v A (No 2) were made having regard to the Gender Recognition Bill…”

The section on “sex, gender and the law” from Cooper and Palmer’s EAT skeleton argument is worth reading if you want a run-down of the case law. They argued that sex is a biological characteristic fixed at birth based on chromosomal and physical characteristics, whereas transsexual gender identity is a different category of thing (based on the cases of Corbett v Corbett [1970], Bellinger v Bellinger [2003] and Chief Constable of West Yorkshire Police v A (No 2) [2005]).

As Lord Hope noted in Bellinger, gender reassignment treatment and surgery may give someone some of the physical characteristics of the opposite sex, but medical science “is unable, in its present state to complete the process. It cannot turn a man into a woman or turn a woman into a man”. 

A person’s biological sex remains a material reality.

Sex in the Equality Act: not so mysterious

The Equality Act 2010 (and the Sex Discrimination Act 1975 before it) uses the word “sex” in the same way as the dictionary. It is a basic category of biology and is reflected in common law. 

The Equality Act protects against sex discrimination, which in practice means detrimental treatment relating to the sex that other people know or perceive a person to be, not the sex that a person wishes they were.

Lord True pointed out in a ministerial statement a few weeks ago that in any individual piece of legislation, the meaning of “sex” is not a mystery, but could mean only one of two things, depending on policy intent:

1) biological sex, or

2) sex as modified by a Gender Recognition Certificate

Where a law refers to pregnancy and birth, it is clear that the policy intent is to refer to biological sex.

The Equality Act 2010 is full of references linking the concept of “woman” and “sex” with pregnancy and childbirth, which remain among the main reasons women face discrimination at work.

S.13 (6) of the Equality Act 2010, for example, provides:

If the protected characteristic is sex –

less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;

in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

It seems quite clear that when the Equality Act says a woman might be discriminated against because she is breastfeeding, or that maternity provisions do not discriminate against a man, that it recognises the words “woman” and “man” as relating to option 1: the two biological sexes. 

Lord True’s statement suggests that a way forward might be to amend legislation to make this absolutely clear. No one should have to worry, or argue, or draw on complex case law when they are undressing in a space which they have been told is single-sex. And no one should lose their job for stating clearly what the law recognises about the two sexes.

The post Male and female in the Equality Act  appeared first on Sex Matters.

Now the Scottish Government is proposing to reform the legislation in a way that risks harming the employment prospects of increasing numbers of young people identifying as transgender.

Under Section 22 of the GRA, anyone who might come into contact with a trans person’s information in an official capacity – employers, potential employers, service providers, NHS workers, local-government staff, police officers, charity workers, the tax and benefits office, their children’s school — is banned on threat of criminal penalties from revealing information that “concerns the person’s gender before it becomes the acquired gender” (i.e. their biological sex and associated identity). 

The trouble is that it is extraordinarily hard to hide the fact of your sex, which becomes written on your face and frame once your body starts to produce enthusiastic quantities of testosterone or oestrogen at puberty. While some “female-to-male” transitioners become hard to spot, very few “male-to-female” do. Broad shoulders and a deep voice, a prominent brow and well-developed chin, a male gait, an Adam’s apple, large feet and hands, male-pattern baldness and beard growth all require heroic efforts to hide or modify, rarely fully successfully.

Moreover, the very idea that being trans is a shameful secret, and that trans people should try to hide the truth, seems increasingly outdated in a world which celebrates “Trans Day of Visibility”.

Scotland is proposing to extend official concealment for this secret, so shameful that telling the truth becomes a criminal act, to a much greater number of people. 

Sex Matters has raised the issue about how identity secrecy may be exploited by bad actors seeking to erase their past. Many have raised concerns about what this law would mean for service providers trying to provide separate-sex services. But perhaps the most immediate impact would be to damage the employment prospects of people who identify as transgender. 

Unemployment levels are high among people who identify as transgender. A survey of UK employers found that one in three employers admit they are “less likely” to hire a transgender person.

Only 4% of businesses said their workplace culture was diverse enough for transgender people to fit in, and customer-facing sectors of retail, IT and leisure and hospitality were the least likely to say they were willing to hire a transgender person.

The UK government’s national LGBT survey found that trans people were less likely to have had a paid job in the 12 months preceding the survey than the UK general workforce (65% of transwomen and 57% of transmen had one). In Ireland, where self-ID has been brought in, more than 50% of trans people are unemployed, and those that are tend to be in poorly paid roles. 

The only sector where trans people are more likely to be employed is “sex work”, the euphemistic term for prostitution. Trans people are over 1,000 times as common among sex workers as in the general population. 

Scotland’s proposed legislation will offer sex secrecy to a much wider group of people, including children from age 16, without any doctor’s assessment or medical treatment, and with only a six-month waiting period between deciding to make the legal change and gaining lifelong legal secrecy about their sex. This will undoubtedly mean that this pool of people includes many more who are clearly recognisable as their sex, and who have not worked through with a mental-health professional whether their expectations for social acceptance by others are realistic. 

People with this legal status present a risk to employers. Employers will be required to say to customers, clients, students and other employees that they do not know what biological sex their employee is, only what their legal sex is. And they will be forbidden from explaining the reason why (since the information that the person has a Gender Recognition Certificate is in itself protected). They will need to have systems to keep any information that reveals a person’s biological sex under tight security (even though it may be publicly obvious) or else risk putting those who access it as part of their job at risk of criminal prosecution. 

Although some hope this will further the cause of trans inclusion, it is more likely to cause employers to find reason to avoid employing people who have, or who might avail themselves of, this extraordinary legal status and the risks it creates.

The medical criteria put in place around the GRA 2004 were designed to protect the specific group of people that Act was intended to help. By removing these safeguards and expanding the scope of the Act, the Scottish government will harm a much wider group, including increasing numbers of young people, by imposing unworkable and unreasonable conditions on their employment and their routes into adult life. 

The post Sex self-ID in Scotland and transgender unemployment appeared first on Sex Matters.

This is a debate following a public petition. It is not a government motion, but a government Minister will respond.

This is Sex Matters’ briefing for MPs in advance of the debate.

If you have two minutes, you can write to your MP using our email tool.

The post Sex Matters briefing for conversion therapy debate appeared first on Sex Matters.

“We champion freedom of expression but…”

When local LGBTQ+ organisations learnt she was coming to speak, they started to campaign against her, writing an open letter saying the university was failing in its duty of care to support trans students by allowing the seminar to take place. 

“We welcome and champion freedom of expression,” they said, before going on to express concern that Lawford-Smith’s opinions “should not unnecessarily encroach into lecture theatres”. 

The student union also weighed in. Without knowing what Lawford-Smith would say, officers argued that the seminar should go ahead only if equal time was given for an opposing speaker. Student societies lined up to denounce the event. The drama society called it “nothing more than transphobic hate speech”. There was an online petition and a demonstration was planned, with warnings that the noise might disrupt exams. 

The demands

The student activists demanded:

• acknowledgment from the university that the United Nations has described trans conversion therapy as “torture”
• support from the Vice-Chancellor for banning conversion therapy for all
• the University of Reading to platform public-access lectures advocating for trans rights
• more trans diversity in hiring faculty members, particularly in the law school
• more support for the health and wellbeing of trans students. 

But this story doesn’t end in the usual way. 

The university held its nerve, saying that the seminar was legitimate, and providing security to ensure that it could go ahead peacefully.

The peaceful protest

On the day, several dozen students gathered outside, enjoying their freedom of speech with flags, signs and placards, and the peace was kept. The event passed without incident. Two protesters attended the seminar, and even sat and had coffee with the speakers and other attendees afterwards.

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A post shared by Reading TransMovement (@readingtransmovement)

The complaints

But after the event, external agitators mobilised to generate multiple complaints against the university, producing template letters and promoting them on social media and via a Discord server. The complaints accused the university of acting unlawfully and of creating a hostile and unsafe environment. The university appointed Professor Peter Miskell to investigate. 

• The first allegation was that Dr Lawford-Smith’s arguments condone torture. Miskell read Lawford-Smith’s papers and watched a video of the talk. He concluded that there was no evidence of this. Her analysis was grounded in evidence and made the critical distinction between talk therapy and abusive “aversion” therapies.  
• The second allegation was that it was illegitimate to allow Holly Lawford-Smith to speak without an opposing speaker. Miskell found that the single-presenter format was perfectly appropriate for a departmental research seminar, and noted there had been robust and open discussion following the talk. 
• The final allegation was that the university breached its commitment to diversity, inclusion and safety by providing a platform to a speaker alleged to hold “transphobic” views. This was dismissed as misunderstanding what diversity and safety mean.

Miskell stressed that while university is committed to keep people safe, this did not mean providing a safe space for coddling young minds:

“There is no stipulation within the University’s policies requiring it to prohibit the organisation of events on the basis that the expression of offensive or repugnant views poses a threat to student safety. On the contrary, the Freedom of Speech Code of Conduct places an obligation on all students and staff to tolerate the expression of opinions within the law which are repugnant to them.”

Robert Van de Noort speaks up

University Vice-Chancellor Robert Van de Noort took this as a teachable moment, publishing a strong, principled defence of academic freedom and freedom of speech. 

He urged students to be open to debate:

“None of us, though, has a right to not be offended by somebody’s views. We have an obligation to respect and allow others to express views we disagree with, even those we find upsetting and hurtful. If you are offended by a speaker, don’t just surround yourself with people who agree with you – go to the talk or seminar and try to change some people’s minds through reasoned debate. Preventing discussion from happening isn’t just wrong, it’s also counter-productive to good ideas.”

What did Reading University do right? 

• It set the tone from the top.
• It didn’t panic in the face of online hype about offence, “torture” and “hate speech”.
• It stuck to its principles, its charter and process, in particular its legal obligations to protect academic freedom. 
• It engaged with the content of Holly Lawford-Smith’s talk and recognised that it constituted a legitimate engagement in research and public debate.

What pitfalls did Reading University avoid?

Reading University didn’t hand over decision-making to the LGBTQ+ activists, or engage with their list of demands. It stuck to its job. 

This is in contrast to the 28 university medical schools that have already signed up to a charter on conversion therapy similar to the demands of the protesters in Reading.

They have committed to supporting a broad ban on any form of “conversion therapy”, to teaching only gender-identity affirmation, and to forbidding medical school students and staff from participating in the provision of “any form of ‘conversion therapy’ ” under any circumstances. 

Imagine if Reading University had signed up to such a charter. Would it have been able to protect the academic freedom of Holly Lawford-Smith to unpick the meaning of conversion therapy? Or of any other academic to do research that defines conversion therapy more narrowly than the activists? 

We have written to the Office for Students urging it to investigate the medical schools charter, and to the vice-chancellors and heads of the medical schools, to warn them that what they have signed up to is a commitment to breach their legal obligation to protect the freedom of speech of members, students, employees and visiting speakers. 

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Identity matters

The involvement of the state with an individual’s identity is not intended as a feel-good exercise in validating “who they are inside”, but more prosaically, to reliably validate who they actually are. 

Individuals can change their name, commonly through marriage and adoption, or just because they wish to, and can keep information about themselves private in many situations, but there are situations where we need to prove our identity: the basic facts of being a particular individual whose mother gave birth to us on a particular date in a particular location. 

As well as “natural persons” the state also registers “corporate persons”: companies that have a life of their own. Identifying the people behind shell companies is a critical safeguard against enabling wrong-doing such as money laundering, tax evasion, bribery and corruption. 

Many small states have become a haven for providing anonymous “shell scheme” identities of the corporate kind. Scotland is one of them. Scottish limited partnerships, a business structure established in the early 20th century for farm holdings, became the key vehicle for the “Russian Laundromat” scheme used to launder more than $20 billion from Russia between 2010 and 2014. 

Money-laundering schemes typically exploit legislative loopholes in several countries, taking advantage of lax pieces of legislation in different places and layering them behind a front company that looks legitimate and trustworthy. 

Alison Thewliss, the SNP MP for Glasgow Central, and Ian Blackford, SNP leader at Westminster, have recently called on the UK government to  clamp down on Scottish limited partnerships. 

But the SNP and the Scottish Green Party are also busy developing a new loophole for personal identity laundering in Scotland. 

Scotland’s sex-change loophole

The Gender Recognition Reform (Scotland) Bill proposes to carve out the process of legal sex change in Scotland from the safeguard of medical diagnosis and treatment that remain in place in the rest of the UK, and set it up as a haven of fly-by-night “self-identity” within the otherwise respectable-looking Gender Recognition Act. 

Anyone over the age of 16 who is “ordinarily resident” in Scotland (which can mean enrolled on a course, or renting a bedsit) will be able to apply for a gender recognition certificate on the basis of a self-declaration that they have been “living in the other gender” for three months. After a further three-month waiting period they will receive their new legal identity. 

This new identity comes with an extraordinary state-sponsored invisibility cloak, comparable to going into witness protection. 

It is an offence under the Gender Recognition Act for a person who has acquired “protected information” through the course of their job about a person with a gender recognition certificate to disclose that information to any other person. That information includes their actual sex, and their previous name. The information can be legally disclosed only under very limited circumstances such as with a court order, or in the course of preventing or investigating crime. Secrecy is enforced in most professional situations, including giving personal references. 

The interaction of this with processes for “safer recruitment” – designed to prevent unsuitable people gaining employment that gives them access to vulnerable people – is a real concern.

Undermining safeguarding due diligence

If an employer needs to apply for a criminal record check from the Disclosure and Baring Service (DBS) or Disclosure Scotland this usually requires that the person being checked discloses all their previous names and addresses. But if an applicant has a GRC they can make use of the “Sensitive Applications Process” whereby they disclose these details only to the Disclosure service, and not to the organisation they are seeking to be employed by or volunteer with. 

This means that organisations will not be able make use of their own information and safeguards. Organisations like the Scout Association keep their their own databases which include concerns reported within the organisation. Other institutions and regulatory bodies similarly keep databases of “red flag” concerns about inappropriate conduct. A GRC removes the ability to check whether a person already appears in the organisation’s own safeguarding database, and makes the taking of references unreliable. 

These issues already exist with the GRC regime, but people accessing this secrecy are currently only able to do so on the basis of two doctors’ reports. 

Under the proposed new Scottish law the legal invisibility cloak would be awarded based only on a self-declaration. Furthermore a proposed change in wording means a person’s sex becomes secret not when they receive a GRC, but when they apply for it. And after they apply for it they can decide to remain in limbo for up to two years, neither confirming nor rejecting the new identity, but gaining the benefit of criminal sanctions against any professional who mentions their sex. 

And once a gender recognition certificate is confirmed, there is nothing to stop a person repeating the process: making another statutory declaration and adopting another new identity that aligns with their biological sex, but has no link to either of their previous identities. 

The opportunity for this personal shell scheme to be misused by people who want to conveniently sever the link between themselves and their past should not be dismissed.

The provision of criminal penalties for making a false declaration are no protection at all, since there is no way of saying that a person’s declaration of their gender identity is not deeply felt, nor that they should not be allowed to change their mind about something so subjective. The current Gender Recognition regime already allows that being a convicted rapist and retaining your penis is no bar to your transition to “being a woman” being genuine and worthy of being validated in law and by officialdom. 

An open door

The proposed new Scottish Law also offers a more liberal regime for recognising gender recognition undertaken abroad. Currently the UK will recognise legal gender recognition certificates (or new birth certificates) from a list of “approved jurisdictions” that have similar safeguards. 

The Scottish Bill sweeps away the approved list of jurisdictions for Scotland, and promises to recognise gender recognition from any country. It even allows an applicant without any evidence of gender recognition from another country to make a statutory declaration that their gender has been changed but there is no available evidence. 

It then expects England, Wales and Northern Ireland to accept the “Gretna Green” sex change as if it had the same validity as the more robust process in the rest of the UK. 

Other states such as Malta and Switzerland have adopted self-identity, but their role as international havens for personal identity secrecy is restricted, as they only offer no-questions-asked legal sex-change to their own citizens. Ireland has adopted the laxer “ordinary resident” approach proposed in Scotland. 

Unintended effects

None of this is to say that the people campaigning for gender self-id in Scotland wish to see it used for harm. But the risk of poorly conceived legislation enabling anyone with a year to spare to effectively craft their own identity disappearance scheme should not be dismissed. 

The farming families for whom Scottish limited partnerships were established could not anticipate how the same structure would be used by highly motivated people to launder hundreds of billions of roubles from Russia.

We must anticipate the mischief that may be managed by criminals and child abusers, given the offer of a cheap and easy cloak of invisibility. 

The post Is Scotland going to turn the UK into an identity-laundering haven? appeared first on Sex Matters.

It is worth writing to them urgently. Make sure they hear the other side.

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Is your MP on the list?

Alliance Party of Northern Ireland

Stephen Farry, North Down

Conservative

Dehenna Davison, Bishop Auckland
Ben Everitt, Milton Keynes North
Peter Gibson, Darlington
Alicia Kearns, Rutland and Melton

Green Party

Caroline Lucas, Brighton Pavilion

Labour / Co-operative

Diane Abbott, Hackney North and Stoke Newington
Rosena Allin-Khan, Tooting
Fleur Anderson, Putney
Clive Betts, Sheffield South East
Lyn Brown, West Ham
Bambos Charalambous, Enfield Southgate
Alex Cunningham, Stockton North
Alex Davies-Jones, Pontypridd
Anneliese Dodds, Oxford East
Stephen Doughty, Cardiff South and Penarth
Angela Eagle, Wallasey
Chris Elmore, Ogmore
Mary Foy, City of Durham
Lilian Greenwood, Nottingham South
Nia Griffith, Llanelli
Andrew Gwynne, Denton and Reddish
Kim Johnson, Liverpool Riverside
Afzal Khan, Manchester Gorton
Ian Lavery, Wansbeck
Holly Lynch, Halifax
Andy McDonald, Middlesbrough
John McDonnell, Hayes and Harlington
Anna McMorrin, Cardiff North
Ed Miliband, Doncaster North
Stephen Morgan, Portsmouth South
Lisa Nandy, Wigan
Charlotte Nichols, Warrington North
Abena Oppong-Asare, Erith and Thamesmead
Kate Osborne, Jarrow
Taiwo Owatemi, Coventry North West
Luke Pollard, Plymouth, Sutton and Devonport
Rachel Reeves, Leeds West
Bell Ribeiro-Addy, Streatham
Virendra Sharma, Ealing Southall
Barry Sheerman, Huddersfield
Alex Sobel, Leeds North West
Emily Thornberry, Islington South and Finsbury
Christian Wakeford, Bury South
Catherine West, Hornsey and Wood Green
Nadia Whittome , Nottingham East

Liberal Democrat

Alistair Carmichael, Orkney and Shetland
Wendy Chamberlain, North East Fife
Daisy Cooper, St Albans
Ed Davey, Kingston and Surbiton

Scottish National Party

Hannah Bardell, Livingston
David Linden, Glasgow East
Stuart C McDonald, Cumbernauld, Kilsyth and Kirkintilloch East
John McNally, Falkirk
Kirsten Oswald, East Renfrewshire
Alison Thewliss, Glasgow Central

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