In her first significant intervention of the election campaign the women and equalities minister Kemi Badenoch has said that a future Conservative government would define “sex” as biological in the eyes of the law.
Writing in the Times, she said that changing the Equality Act 2010 would provide new protections for biological women in same-sex spaces such as changing rooms and hospital wards.
“Clarification is required,” she said, “not just to protect the privacy and dignity of women and girls, but also … trans people [who] were going about their lives in peace, until predators started exploiting loopholes in the law by calling themselves trans with no evidence beyond their self-identification.”
Writing for the Spectator, Iain Macwhirter says that while Badenoch’s intentions “are honourable and many women of all parties will support her effort”, there are “a couple of problems”. He continues:
First, the definition of sex. The Equality Act does already recognise sex as a protected characteristic. Moreover, even under the present law it is possible for women’s single sex spaces, such as a therapy group for victims of sexual assault, to exclude natal males if that is “a proportionate means of achieving a legitimate aim”. So in a sense the law already regards biological sex as primary. This was the substantive reason the UK government challenged Nicola Sturgeon’s Gender Recognition Reform Act last year, even though it was formally blocked under Section 35 of the Scotland Act 1998. The Scotland Secretary, Alister Jack, said it was incompatible with UK equality law.
Of course clarity is always a good thing and it is sensible to stress that ‘sex’ in the Equality Act always meant biological sex, given that progressives like the US academic Judith Butler say that sex is a social construct and even the Lancet tells writers to use the expression ‘sex assigned at birth’
However, there are still problems about the legal definition of ‘woman’. They stem, not from Scotland’s gender Bill, but the legislation that set the gender train running in the first place: the 2004 Gender Recognition Act.
This allows trans people to change their legal sex and alter their birth certificates to register their ‘new sex’. So, how does a rape crisis centre, say, ban transwomen if the law says they are legally female?
What “paperwork”, asked the Today presenter Mishal Husain, will be used to exclude transwomen from single sex spaces? If they are legally women, in possession of a gender recognition certificate, can they be excluded without discrimination?
That really is the issue here. Kemi Badenoch tried to bat the matter away saying that “it’s not about paperwork”. She suggested the exclusion of transwomen would be done on the basis of appearance if they are “visibly of a different sex” as she put it on Today.
Is it really acceptable to make these judgments on appearance alone? Obviously not. Transgender reassignment is also protected under the 2010 Equality Act, as lawyers like Jolyon Maugham of the Good Law Project will no doubt argue that Badenoch is not observing.
Worth reading in full.
