Response to Victor Madrigal-Borloz’s report on the UK

The UN Independent Expert Victor Madrigal-Borloz has issued an extraordinary report at the end of his ten-day mission to the UK. The thrust of it is the familiar claim that speaking clearly about the material reality of the two sexes amounts to “hate”, alongside the equally familiar dismissal of concerns about the impact of gender-identity laws and the safeguarding of children. 

Madrigal-Borloz concludes that the UK’s “Equalities and Human Rights Commission” (sic) is “wholly unbecoming of an institution created to stand up for those in need of protection and hold governments to account for their human rights obligations” because of its advice that the government should consider clarifying the meaning of sex in the Equality Act. 

Madrigal-Borloz urges the British people to “Keep calm. Examine the evidence. Respect Diversity”. Let’s examine the extent to which he follows his own advice. 

Keep calm?

Among the claims the Independent Expert anonymises and amplifies unquestioningly are that there have been “rampant surges in hate crimes”; that young children and teenagers in Northern Ireland are growing up in total ignorance because schools “can essentially choose to teach absolutely nothing in relation to RSE” and, most concerningly, that “kids are killing themselves” because of horrendous waiting lists for “gender-affirming care”. 

He makes no attempt to verify these claims. Here are some facts.

• There is no evidence that hate crimes are “rampantly surging”. When it released the latest hate-crime statistics, the Home Office said: “It is uncertain to what degree the increase in police recorded hate crime is a genuine rise, or due to continued recording improvements and more victims having the confidence to report these crimes to the police.” It said that the recent annual increases were thought to have been driven by improvements in crime recording and the removal of the designation as National Statistics of police-recorded crime, as well as a general bounce-back in crime levels as normal life resumed following the end of COVID-19 restrictions.
• Provision of sex education is mandatory across the UK, including in Northern Ireland. There is a minimum content order, and some schools can work within their ethos as to what exactly is taught. Although there are debates about what should be taught and how content should be overseen, there is no evidence that children in Northern Ireland are leaving school in total ignorance about sex. 
• The claims about suicide are irresponsible and not based on evidence. It is often argued that children who identify as transgender are at risk of suicide if not affirmed. This is not backed up by evidence, and the commonly cited studies are weak. Figures from the Tavistock GIDS show that four patients were known or suspected to have died by suicide between 2010 and 2020, out of about 15,000 patients undergoing treatment or on the waiting list. While this rate is higher than for adolescents of similar age, this cohort is known to suffer from mental-health comorbidities that raise the risk of suicide, and the figures shed no light on whether medical transition would reduce that risk.

Examine the evidence?

The Independent Expert’s report lacks the footnotes that might enable readers to examine for themselves what he considers as “evidence”. To give just three examples: 

• A majority of the population supports self-ID? This is misreporting. The Independent Expert states that “a majority of the population supported the removal of medical requirements” for legal sex change, saying that this was a finding of the UK Government’s consultation on GRA reform in 2020. However, this consultation did not involve a representative sampling exercise and does not provide conclusions about the views of “the majority of the population”. In fact, when surveys are done using representative sampling they show that only 17% of the population support allowing people to change the sex recorded on their birth certificate without a doctor’s approval. 
• 76% increase in hate crimes over three months? This is mystery data. The Independent Expert says that “a leading nongovernmental organization” showed him data which “indicated a 76% increase in hate crimes targeting trans persons just over the last three months alone”. This is much higher than official figures. Which organisation? How does this organisation define “hate crime”? Why is the figure so much higher than those reported by the police and CPS? The Independent Expert gives no source for his information. 
• “Gender-inclusive approaches to trans women”. This misunderstands research. In Scotland, he says, “a women’s rights organization examined the performance of 173 social housing providers, 73 of which agreed to implement gender-inclusive approaches in housing that included trans women. Yet only a few years later, the organization informed the Independent Expert that just 9 of those providers were gender-inclusive on paper, and only 6 or 7 remain so in practice.” What does any of this mean? Although no reference is given, these appear to be figures from a recent report by Scottish Women’s Aid called Policies Not Promises A review of Scottish social landlord’s domestic abuse policies. It is about social housing landlords’ approach to domestic violence, which it says is “carried out predominantly by men and directed at women and girls”. While the guidance states that policies should apply to anyone experiencing domestic abuse, including men, lesbian, gays, bisexuals, transgender people and gender non-binary people (LGBT+), this is not a study focused on “gender-inclusive approaches” to trans-identifying men in accommodation for women. 

Throughout the report the Independent Expert makes vague references to “evidence” without citations. At the same time he makes no mention of evidence that was given to him during his visit – about the Cass Review and the associated NICE evidence reviews, the experience of detransitioners, the importance of single-sex services and lesbians driven out of associations and public spaces for not accepting the transwomen-are-women mantra. 

Respect diversity?

The Independent Expert met with several “gender critical” groups during his visit – Sex Matters, Fair Play for Women, Safe Schools Alliance, Labour Women’s Declaration, For Women Scotland, LGB Alliance, Lesbian Labour and the Gay Men’s Network. 

We highlighted how gender-identity laws destroy clear sex-discrimination protections, damage freedom of speech and belief for everyone, and have a detrimental impact on the ability of women (including lesbians, women from ethnic and religious minorities, older women and disabled women) and gay men to participate fully in public life. We told him about the serious concerns about the “gender affirmation” approach to children and young people with gender dysphoria. (Notes from Sex Matters, LGB Alliance, Safe Schools Alliance, Lesbian Labour.)

In his report he dismisses all of these concerns in a single short paragraph, saying “abundant work of the mandate” has addressed them already. It has not. 

He says his mandate will consider submissions only if they are evidence-based and fall within the framework of international human-rights law. This paragraph is the one place in the report where he qualifies the “lived experiences” he has heard about. He presents our lived experience of silencing and cancellation as nothing more than “accusations”.

This is despite the fact that there have already been cases based on international human rights that have confirmed the facts and the law on this. He met with one of the people (Maya Forstater) who won a claim of belief discrimination, and heard about others. He was asked to watch a short video about detransitioners, who surely have a claim that their human rights were infringed when they were sterilised and had their sexual function destroyed. He refused to watch it. 

The representatives of Sex Matters, Fair Play for Women, Safe Schools Alliance and Labour Women’s Declaration asked him to take a group photograph at the end of our meeting, as he did with other civil-society groups. He refused, accusing us of having been personally abusive towards him on social media. We do not know what he was referring to, and he did not tell us (but here are all the tweets). 

He was happy to take group photographs with many other groups.

His respect for diversity does not appear to extend to diversity of belief or opinion.

Taking rights seriously

His report makes it clear that he is simply not taking human rights seriously, and is making the same mistake as the Centre for Global Development (see Forstater v CGD [2021]) and Humberside Police (see Miller v College of Policing [2021]).

In his report he suggests that politicians answering the question “What is a woman?” could fail the Rabat Plan of Action test of the boundary between free speech and hate speech. But he neglects to note that the Rabat Plan of Action states that there is a “high threshold for defining restrictions on freedom of expression”. This is the same high threshold defined by Article 17 of the European Convention on Human Rights. Which is the same threshold in the “Grainger Criteria” for interpreting what it means to be “worthy of respect in a democratic society” in respect of the protected characteristic of belief in the UK’s Equality Act. 

Victor Madrigal speaks of respecting human rights, yet he refused to stand beside those who have been stigmatised and discriminated against because of their beliefs, and who are dedicated to standing up for human rights.

Instead he alleges that “hateful and hurtful public political discourse” (such as asking what a woman is) has “caused profound and wide-ranging damage to the mental health of trans people”. He quoted one person as saying “I can’t emphasize how vulnerable I and other trans people feel at the moment right now. I know so many trans people who feel so scared that they do not leave their homes.” Others, he said, talk of suicide and self-exile. 

These are not rational responses to the current political discussion. As the EHRC has said in response to a recent letter by Stonewall:

“It is disappointing that trans people are being given the message that the potential change would make it impossible for them to live their day to day lives safely and with dignity. Such unfounded remarks simply generate more fear and concern among a community that already experiences too much discrimination.”

The Independent Expert’s visit to the UK was a missed opportunity for an international human-rights expert to learn more about how a country with strong equality laws, a culture of democracy, freedom and tolerance and a diverse civil society is trying to find a way to balance human rights. 

The Independent Expert states that “those who he met declared themselves unable to suggest a winning formula for making inroads in a situation that has been driven to a state of such acrimony”. This is simply false. We handed him a winning formula:

He chose to reject this, deciding instead to amplify irrational fears among mentally vulnerable people, and to use those fears as a cudgel to attack the democratic culture of the UK.