Diversity, inclusion and the law – overstepping the mark

The culture of progressive politics and the power of lobby groups has led many organisations to inadvertently enact policies out of line with the law.

Diversity and the Law

Although none of the definitions of diversity and inclusion include legal terms, it is law that underpins the practice. Unlike the previous equal opportunities which was more overt in its legal foundation the word diversity does not automatically invoke a legal interpretation. Indeed the diversity and inclusion approach distanced itself from the law, which the private sector found to be too defensive and hard to get employee engagement. Yet without the equality laws there would be no diversity and inclusion. I have discussed this paradox in the chapter in my book Women’s Work Men’s Cultures

In one chapter I track how and why diversity and inclusion became the dominant discourse ousting equal opportunities and even the word equality from most corporate sector organisations. The public sector kept the concept of equality much longer and some organisations still do. They also have a much closer tie with the law as they are subject to the Public Sector Equality Duty and obliged to provide equality impact assessments for their policies.

However even in the private sector we know from when things go wrong that adherence to the law is a driver for any diversity policy whether overt or not. No company wants a publicised discrimination case or an equal pay case. It can be costly and is bad for internal morale and bad for the brand reputation.  The importance and influence of the law on diversity and inclusion was highlighted during the debate on quotas following the financial crash by the Treasury Select Committee on Women in the City in 2009.

 MP Sally Keeble, the only woman on the Committee pointed out that she was not aware of voluntarily given advances for women without a law being passed.  Protection against discrimination and harassment, equal pay, maternity leave and pay, flexible working all required legislation. And it is the nine characteristics protected under the Equality Act 2010 which are the ones on which organisations focus most.

Often as consultants in the D and I world we advise companies to go one step ahead of the law… be a leader not a laggard, we say. Offering more generous maternity and paternity benefits, promoting flexible working rather than waiting for it to be asked for, aiming for diverse teams etc. We don’t have quotas in this country but many companies internally have their own goal and this is to be applauded.

However many organisations have now run ahead with a particular diversity agenda, the transgender one, often advised by outside lobby groups and may now be vulnerable to the threat of  legal action. Some of the advice offered to organisations on trans issues is now being challenged through the courts. I refer specifically to the recent cases of Maya Forstater and the University of Essex which I discuss below but there are others. (Bayley v Stonewall)  

The Equality Act 2010 covers the same groups that were protected by existing equality legislation – age, disability,  race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity and added gender reassignment. There are obvious tensions between some of these groups e.g. some religious beliefs are at odds with our social and cultural expectations for women and sexuality to name but two. This is a challenge both for organisations and the law. In my experience it is far better for people to be able to discuss these different beliefs than for one discourse to dominate and silence others. The problems go underground. In recent years the demand for transgender rights has dominated the LGBT discourse. Unlike the demand for gay rights, which some argue is a similar situation, some of the demands of the trans lobby impact others’ rights… particularly women’s rights. And herein lies the conflict, which needs to be addressed but has instead become politicised and avoided.  

The protection of trans people under the Equality Act 2010, section 7 is covered by the characteristic of gender reassignment. It states that,

(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

The word transsexual, commonly used for years and in the wording of the Act has now been rejected by lobby groups and many trans people as being outdated and too medical. Some still use it. Instead more generally the word transgender is used and this has a much broader meaning.  The current definition of this given by LGBT group Stonewall is:

Trans is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.

Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.

Since 2010 there has been constant pressure to change some of the language in the Act as it refers to transgender people and groups lobbied the Select Committee on Women and Equalities in 2015 as they debated the Equality Act 2010 and the GRA 2004. The characteristic they would prefer is gender identity e.g. Stonewall’s submission  demanded  a

  • A review of the Equality Act 2010 to include ‘gender identity’ rather than ‘gender reassignment’ as a protected characteristic and to remove exemptions, such as access to single-sex spaces

But at the moment gender identity is not enshrined in law – not in the Gender Recognition Act 2004 nor in the Equality Act 2010.

Unfortunately for years lobby groups and indeed government and public bodies have been giving organisations misguided advice on their trans policies which do not always correspond with current law but with law that they would like changed. So, many organisations, in good faith, are promoting the erroneous advice that gender identity is not only protected but more important and indeed can replace sex when it comes to data collection.

A recent example of how an organisation was given incorrect advice about the status of gender identity is provided by a case reported on last week. The University of Essex was taken to task for its policy which led them to cancel two speakers from an event for their ‘transphobic views’. The wording of the university’s policy on supporting trans and non-binary staff could have been used to lend credence to the idea that newspaper letters on trans issues, written by the two women, could amount to or lead to unlawful harassment.

Akua Reindorf, a barrister said “This policy is founded on an erroneous understanding of the law. The policy is reviewed annually by Stonewall and its incorrect summary of the law does not appear to have been picked up by them.

“In my view the policy states the law as Stonewall would prefer it to be, rather than the law as it is. To that extent the policy is misleading.”

The policy said it was unlawful under the Equality Act 2010 to discriminate against someone because of their gender identity or trans status. But Reindorf’s report said this did not accurately state the law, since “gender identity or trans status” are not protected characteristics; rather, the protected characteristic is gender reassignment. Nor were the examples of harassment suggested in the policy actually unlawful.

Another misconception given out in guidance is that the provision of unisex facilities is inclusive and indeed could be discriminatory if they are not provided. This is in direct conflict with the rights of women and girls to have their own spaces for certain activities for the purposes of dignity and safety. Again on the advice of lobby groups some organisations have changed their entire provision of toilet facilities to unisex, rather than providing an additional facility for any trans staff. A recent pronouncement by the government made it clear that the provision of single sex toilets was still expected of all buildings.

The provision of single sex spaces is still enshrined in law in the Equality Act and in certain situations even transgender people with a gender recognition certificate may be excluded:

“Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment.”

It can be seen in the request from Stonewall quoted above that it wanted the removal of  single sex exemptions, provide for in the Equality Act. But again this has not been enacted. Many organisations, including schools and hospitals have been advised that anyone who identifies as a particular sex has a right to use those facilities reserved for that sex. That is not exactly what the law says.

It isn’t just Stonewall. Even the EHRC, advised by Stonewall, was forced to reissue its guidance on this. As a result of complaint by Authentic Equity Alliance (AEA), earlier this year the EHRC amended its guidance which stated that transwomen with a Gender Recognition Certificate (GRC) must not be refused access to women-only spaces – guidance which actually contravenes the Equality Act. Here’s the actual statement:

‘Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single-sex services.’

Though that statement was removed from the EHRC guidance, it remains in a plethora of other EHRC guidance. This incorrect guidance had been in existence for six years.

 ‘The Government Equalities Office (GEO), which funds the EHRC, went even further. Its guide, ‘Providing services for transgender customers’, states that all trans persons [no GRC in sight here] should be free to select whichever facility they choose. The guide also states that not allowing a transwoman access to women-only spaces is direct discrimination – which is also incorrect. That GEO guidance has been in circulation since 2015.’ AEA.

The Maya Forstater case

Back in 2019 Maya Forstater’s contract with her employer was not renewed after she had expressed her belief on Twitter that biological sex was immutable i.e. you could not change sex. Belief in the immutability of biological sex has become for some individuals and organisations itself ‘transphobic’. Forstater claimed that she had suffered direct discrimination for having a belief that was protected under section 4 of the Equality Act 2010. She lost in the employment tribunal and on appeal last month two arguments were made: that this belief should be protected under the Equality Act 2010 and secondly a person should be allowed to express this belief as a freedom under Article 10 the Human Rights Act 1998. The judgement will be made in a month’s time. The details of the case can be found elsewhere. But in very important court intervention the EHRC supported Maya Forstater ‘s right to express her  belief that you cannot change biological sex. In her first interview since taking office, the incoming chairwoman of the Equalities and Human Rights Commission, Baroness Falkner said it was “entirely reasonable” for people to challenge the biological status of women who were born as men.

“The principles are absolutely clear, which is why we took a position to intervene in the case,” Baroness Falkner said, “The principles are that freedom of belief is protected.”

Baroness Falkner’s arrival signals the change in stance at the EHRC and indeed today, Sunday 23rd May it was publicised that the EHRC was leaving the Stonewall Diversity Champions Scheme.

The Maya Forstater case has had a muted response from the diversity and inclusion sector despite its obvious relevance. In fact I have yet to find one public comment. Why is this? It is ironic that despite the word diversity meaning difference the whole D & I industry feels it needs to speak with one voice on this topic although I understand it is fraught with strong views and emotions. Most equality issues are! I know for a fact that thousands of women and men want to say something but are also fearful of losing their job, losing clients for saying the wrong thing. Brands are nervous that they may be targeted by activists. I myself have posted articles on some of the cases on Linkedin which received hundreds of views but few comments or likes – only told to me in private.  People and it is still mostly women are not just being censored they are mostly self censoring in order to retain their livelihoods. Diversity and inclusion cannot flourish in a culture of fear and censorship. Perhaps with this recent spate of cases, it may be time for organisations to check their diversity policies for legality and inclusion and follow the EHRC’s recent lead and stand up for freedom of speech.

Male violence – what can workplaces do?

Male violence towards women fits uneasily in the diversity and inclusion discourse. Yet as these past weeks alone have highlighted there isn’t a woman in the world who will not at some stage in her life be aware of it. Most likely the way we move in public and negotiate space and avoid confrontations is determined by the threat of it, the fear of it. There are many men who fail to understand how these basic safety mechanisms are hard wired into our brains from a young age – we are taught it so well so young that it becomes second nature. We know what can happen when we are off guard, and often even on guard. A man walking too close to you and voicing sexual suggestions is an assault of a kind, an intrusion into our space and well-being. We don’t report these incidents because quite honestly they are just too frequent and the man has moved on. To remonstrate would be to risk a more violent response so we just quickly walk on by.  And we know too well from media reports what horrors may befall women who are physically attacked by strangers, however infrequently that happens.  Women have no way of distinguishing between a good or a bad man. All men need to take that on board.

As a sociologist I have long argued that organisations are part of a social system and as such what happens outside its doors impacts what happens inside. The wider social status of women is the context in which organisations are implementing their individual D & I gender equality policies. Violence, both the threat and the actual faced by your female employees every day needs to be acknowledged.

What can organisations do beyond acknowledging this and engaging in talking about it? That is a good start and has still to my knowledge not been done by many.

Available support, both internal and external to the organisation, tends to focus on domestic abuse, which whilst impacts both men and women is far more commonly directed towards women. On January 14th 2021 the business minister Paul Scully MP wrote to organisations setting out how employers can help workers find the right support for domestic abuse.

In the letter the Minister said, A new report published by my department today has found that few employers are aware of the signs of domestic abuse, and an even smaller number have a clear policy in place to support survivors. For too long, a lack of awareness of and stigma around speaking about domestic abuse has stopped workplaces from putting in place the kind of help that survivors so desperately need. It was once taboo to talk about mental health, but now most workplaces have well-established policies in place. We want to see the same happen for domestic abuse, but more quickly and more effectively.”

White Ribbon UK is a leading charity engaging with men and boys to end violence against women. White Ribbon’s accreditation programme is one such step that organisations may think about.

Employers Initiative on Domestic Abuse is a newish initiative and a very welcome one that provides resources for organisations which want to offer support for those suffering from domestic violence

In terms of ensuring that female staff feel safe at work, if working at night or late evening, providing adequate lighting and the positioning of car parks are also some tangible things that all organisations can do. Raising awareness of what life is like for women and enabling discussion between men and women, be a should be something included in all diversity and inclusion programmes. The problem is so endemic it should not be taboo.

The big shift that needs to happen for change to take place is to take the focus away from women having to keep themselves safe towards all men trying to create the conditions in which women can move about in freedom.  

Equality between men and women will remain a far off dream until the issue of male violence is resolved. All organisations can play their part.

ONS with egg on its face as it is forced to change guidance

I supported Fair Play For Women’s campaign to challenge the ONS guidance on responding to the Census question What is your sex? and am delighted that the High Court found in their favour and that the ONS agreed yesterday to change their guidance. Legal sex now means what it always has meant… the sex on your birth certificate. Not on a passport which does not require any legal process to change. Dr Nicola Williams, director of Fair Play For Women, said after the verdict,

“Being male or female is a biological reality that affects all our lives. That’s why it’s important to collect accurate data on sex in the Census. Sex data gets corrupted if the ONS conflates sex with the idea of a feeling, called gender identity, under the question ‘What is your sex?’.”

 I was alarmed when I read nearly three years ago now that the ONS was considering permitting the response to the question of sex to be made on the basis of gender identity. Yes this had been allowed in 2011 when the guidance was online only and the census was mostly filled in on paper. Importantly then there was no separate question on gender identity in the Census and the numbers were considered few enough that permitting trans people to answer according to their identity not their birth sex would not corrupt the data. This should have been regarded as a one off.

The numbers of people coming under the trans definition have grown hugely over the past ten years. It used to mean transsexuals of which there were an estimated five thousand but today it now includes cross dressers and all variety of people who wish to describe themselves in other ways, rather than men or women and runs into the hundreds of thousands.

There is in the 2021 Census for the first time a separate question on gender identity. This is to be welcomed. Retaining the guidance on sex would result in gender identity being asked twice. As a social scientist and researcher this looked to me and plenty of others like a disaster for statistical reliability.  We would have ended up without the robust data on the trans population that supporters so rightly wanted and is sorely needed and we would have had the statistics on sex, particularly in certain age groups, skewed.  The Census is used for social and health policy development and referred to constantly by thousands of researchers and social historians. The careful wording of questions (and guidance) is fundamental to any well-designed survey and the ONS is generally regarded as the gold standard.

This fact has already led to other organisations, like the NHS and the GEO  following suit and conflating sex with gender identity in their own surveys and it has seeped into public policy.  I am not sure what happened round at the ONS but it looks increasingly as if it was influenced not by statistical authority but by political ideology and lobbying. This really isn’t good enough. The ONS has egg on their faces and it looks like they won’t be the only ones. Gender identity is not the same as legal sex.

Former Chair of EHRC failed women and girls

As Chair of the EHRC for four years and a former Chair of Stonewall for nine years  one might have thought that David Isaac, partner at law firm Pinsent Masons had the experience and position to influence or even set the tone of the discussions around the proposed reforms of the GRA 2004, which were rejected by Liz Truss in September. Or at least to engage with some of the points which were causing conflict. Because after all sometimes equality strands are in tension. He chose instead to say nothing. Until the time of his departure in August.

In his outgoing interview he suggests that  “We need to move beyond that toxic debate so talking to each other, engaging in respectful listening even if you disagree, that’s the way forward.”  As if the EHRC was an impartial bystander instead of the government body on all equality issues, with the power to intervene at any stage over the past four years.  He also says that the EHRC supports the reform of the GRA which has been pretty obvious for these past four years and the reason perhaps why he and they chose to say nothing until now.  Indeed the EHRC under his leadership is in part responsible for causing confusion by issuing guidance which was not in fact legal and had to be corrected in 2018.  But it had been in existence for ten  years!  

It has also promoted the concept of gender identity (not a protected characteristic over sex). EHRC advice on trans rights from their website was  “We suggest employers and service providers consider the recommendations in this (Women and Equalities Committee 2016 report) when setting their trans policies.” These recommendations which include the legalisation of Self Identity have not been approved and are not law. However thousands of organisations are now under the illusion that they are.

Hardly had the door shut after his departure than the EHRC was presented with a legal challenge over its guidance to organisations on trans matters.

In his newpaper  interview the outgoing EHRC Chair acknowledged some tensions exist between the demands for reform to the GRA 2004 and as he put it ‘some feminist groups’. This is disingenuous. The proposed reforms would have meant allowing male bodied people to self-identify as women for legal purposes. Even if there were provisos to protect women’s spaces in certain circumstances what it means to be a woman would have undergone a fundamental change without any discussion with women. Trans women would have been able to enjoy the protections and spaces reserved for the female sex, merely on their say so. That is the bottom line and if put that simply the tension between the two protected characteristics is obvious. It isn’t just ‘some feminist groups’. It is the feminist groups protesting on behalf of all women.  Because of the strength of the lobby and the promotion of incorrect advice from the EHRC and the  EO we already have men self -identifying as women going into women’s single sex spaces e.g. hospital wards, refuges, changing rooms, prisons, short lists, and importantly sport.

So when Mr Isaac says the debate has been toxic … he really needs to go back and look at the reaction the trans lobby – and yes there is one and it is very powerful – had to some of the concerns that women have been voicing over the past three years. He needs to acknowledge that it is women who have been blackballed, cancelled, de platformed, driven off Twitter and lost their jobs for the crime of asking for women’s rights to be protected.  Brands have been targeted by trans activists to keep in line with their demands and ideology. It is women who receive the most intolerable misogynistic violent and sexual verbal abuse on social media. It is not feminists who do this to trans activists. Feminists’ great crime is to want the reality of biological sex acknowledged and in certain situations to be given priority over a subjective and therefore unverifiable internal feeling of gender identity. Yet these perfectly reasonable concerns are still met with cries of transphobia and wanting to erase trans people. Yet by their silence  the EHCR along with other ‘responsible’ organisations have given credibility and legitimacy to this behaviour which has further encouraged it. And  it has enabled a culture of fear to develop around saying anything which may result in a reaction/ accusation of transphobia. Isaac knows full well that misogyny is not a hate crime and that transphobia is. However it needs to be carefully defined and given context. The EHRC could have done this. It could have set an example and it could have spoken up for women and girls’ rights. After all it is the Equality and Human Rights Commission.  Instead  it turned a blind eye and Isaac as Chair must take responsibility for the mess he has left behind.

The quest to legalise gender identity: academia, activism and the law

Introduction

Liz Truss’s inbox must be overflowing. Leaks to the press that the reform of the Gender Recognition Act 2004 (GRA) might not include a lowering of age for legal transition nor enable legal transition on the basis of self-declaration has galvanised the trans activist lobby into action. It has some might behind it, including Google which promoted a ready to send letter to Liz Truss, demanding the right to Self ID. On the other side thousands of women, unfunded or self funded, have written to her to say please, no to self ID and yes, please protect children. The announcement is expected next week.

In another recent development, it would be hard to have missed the furore surrounding JK Rowling’s posting of her essay and the online abuse she received from so many for it and the column inches this has caused. In it she quite reasonably explained why she believed some of the demands of trans activists impinged on the sex based rights of women and girls. But it seems that making a biological distinction between men and women is now synonymous with hate. And it is not just trans activists that feel this way. This has become the ‘only’ view to take if you are progressive and liberal as witnessed daily on social media and by letters and actions of ‘trans’ allies.

As with many ideologies there is a required mantra and this one goes ‘transwomen are women’ and repeated in response to any requests for explanation. Our eyes do not lie so that this only makes sense if something other than biology determines your sex. And believers think there is something else and it is called gender identity. To give this indefinable concept permanent legitimacy would require enshrining it in UK law and perhaps this is what the fight for the repeal of the GRA is really about.

A long term campaign to legitimise gender identity and prioritise it over biological sex

A campaign to legitimise gender identity and prioritise it over biological sex has been going on for many years, mostly under the radar – until the announcement about the proposed GRA reform in 2018 made by Conservative MP Maria Miller woke some people up. But gender identity had made its entrance onto the global stage more than fifteen years before via the human rights movement and influenced by a powerful global lobby. This is just the final push here in the UK. Adoption of it into individual countries’ legal systems and the approach taken has always been one of stealth, as advised in a report “Only Adults? Good Practices in Legal Gender Recognition for Youth”, which was sponsored by global law firm Dentons and Reuters Thompson

To better understand this ‘under the radar’ campaign’ I returned both to the 2003 Hansard debates on the original GRA bill and then to a 2007 paper which discusses the consequences of the said GRA. The paper,”Sex Changes’? Paradigm Shifts in ‘Sex’ and ‘Gender’ Following the Gender Recognition Act?’ was jointly written by veteran trans activist and now retired academic, Professor Stephen Whittle * and Dr Lewis Turner, academic and recently appointed Chair of Press for Change, a UK trans lobby group.

The original Hansard debates plus this extraordinary article gives us an insight into how interconnected academic theory, trans activism, law and policy really are. The trans lobby influenced politicians which resulted in the confusing use of the words sex and gender both in the debates of the GRA and the Act itself as well as the decision not to make medical transitioning a compulsory condition.

This confusion was then taken by the authors of the article as signalling a major change in thinking about biological sex and gender identity and they extrapolated consequences which were warned about during the debate but dismissed by the majority. That is that gender identity has priority over biological sex.

The Gender Recognition Act 2004

In a case brought by UK resident Christine Goodwin in 2002 the European Court of Human Rights  found that the UK had breached the Convention rights of Goodwin, a transsexual born a man, under Articles 8 (the right to respect for private life) and 12 (the right to marry). That ruling said that transsexuals were entitled to full legal recognition in their adopted sex, including the right to marry. This case was the culmination of a long battle by transsexuals and they welcomed the ruling.

The UK was then obliged to pass legislation that complied with this European judgement. It did so with the passing of Gender Recognition Act 2004 which enabled transsexuals to get a Gender Recognition Certificate and then a birth certificate in their newly acquired sex, if certain conditions were met. Transsexuals would be treated for all purposes as if they had been born with their acquired sex – including the right to marry and the age they qualify to draw a state pension. In short they created a legal fiction, a phrase actually used during the debate. There were four exemptions to this. At the time it received little media criticism as it didn’t seem to be momentous apart from changing the lives of perhaps 5000 estimated transsexuals. However this Act has already contributed to far-reaching social consequences way beyond its intended remit. The perhaps naïve assumptions by politicians led to careless wording, which I suggest was both encouraged by and then seized upon by activists.

The debate on the Gender Recognition Bill in the House of Lords 2003

So far as I know, there is no law nor any known medical procedure that can change the sex of a human being. The Bill purports to do so. It is therefore an objectionable farce.” (Lord Tebbit, Gender Recognition Bill, House of Lords Second Reading, 18/12/03, Hansard: Column 1304).

The case for the Bill was argued on humane grounds that human beings had a right to marry (Article 8 and 12 of the Human Rights Act) and at that time same sex marriage was illegal. However the arguments were tortuous, much of it focusing on supporting the sanctity of heterosexual marriage and not wanting to sanction same sex marriage in any way.

Despite the small number to whom this Act would apply there were two serious consequences of it, both of which were foreseen by some of the members of the committee. And both of which combined resulted in a victory for trans lobby.

First consequence: Sex and gender used interchangeably, without definitions, leading to assertions that gender (then gender identity) precedes sex.

In some ways some members of the House of Lords Committee on the GRA, like Lord Tebbitt had a greater understanding of the consequences of confusing the words sex and gender than many people have today.

Birth certificates use the word sex. The population category in question was described as transsexual and their transition was described as sex change. This was the language at the time. But the Act itself also refers to gender, a word that was familiar and being used to mean men and women in common discourse. (They had to make a leap from gender to changing sex because sex is on birth certificates so that changing gender becomes synonymous with changing sex) During the readings there was much debate about the use of the words gender and sex with some in the House of Lords wanting sex to be used throughout. But they used both and the result is a linguistic mess.

 Lord Tebbitt summed up what he thought the dilemma was, when he tried to put down some amendments:

The great mass of the amendments are very similar in that they replace the word “gender” with the word “sex”. That is because, apart from anything else, my concern is to smoke out in some way the Government’s view of the distinction between those words or to ascertain whether they believe that there is a distinction between them.

I notice that, according to the Oxford English Dictionary, “sex” is defined as either of the two divisions of organic beings distinguished as male and female respectively or the distinction between male and female in general. It states that the sum of those differences is in the structure and function of the reproductive organs on the grounds of which beings are distinguished as male and female and the other physiological differences consequent on those.​

Turning to the issue of gender, we find a slightly different story. “Gender” is defined as:

“In modern (esp. feminist) use a euphemism for the sex of a human being often intended to emphasise the social and cultural as opposed to the biological distinctions between the sexes”.

It seems to me that, even from reading those definitions, the issue arises of whether the Government believe that the Bill is about social matters or about the biological matter of the distinction between males and females. I believe that upon that rests, to a great extent, how the rest of the Bill will be dealt with. I shall say no more about those amendments because they are tabled merely for the sake of tidiness, listing many, as opposed to just one, of the places where the word would be replaced.

His amendments were that:

They would leave out the words, “in the acquired gender” and insert,”as a person of the other sex”.

That, he said ” makes it much clearer what the Bill is about and does not hide behind the euphemism of gender when it is really talking about sex.”

However his concerns were overruled.  Lord Filkin later on in the debate states that, ‘the Bill is about legal recognition and it will define a person’s sex in law. We consider the arguments about the meaning of the words sex and gender to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words sex and gender has changed over time and no doubt will do so in the future. While the meaning of the word sex is not the same as that of gender, the word sex is increasingly in use in ways that go beyond a narrow biological definition (House of Lords Report Stage, Hansard 29-01-04, col. 366).’

Basically we don’t want to get into the semantics of what it all means!!Lord Filkin would surely not have known that his reluctance to grapple with the meanings enabled his wording to be quoted by academics as legitimating the demotion of biological sex as a category.

In their 2007 article Professor Whittle and his colleague Dr Turner reflect not on the practical outcomes for trans people following the Act but on the consequences of the wording of the Act. This itself illustrates how important changing language has been to trans activists, particularly language used in the law. The struggle between many feminists and trans activists is in some ways about language… who has the right to name and define sex, gender, woman and man, male and female? Because if the meaning of woman is changed to include some men where on earth does that leave feminism and sex based rights which are founded on the universal category of woman.

Sex then is beyond a biological definition as held by the ECtHR and the ECJ and Lord Filkin appears to echo Hausman’s 1995 claim that gender has come to mean sex” ( Whittle and Turner 2007)

Lord Tebbitt’s concerns were well founded. Inserting gender in this Act at times as being synonymous with sex, was a victory for trans activists as it paved the way for a looser way of ‘being’ either a man or a ‘woman’ and relied less on biology or (as we shall see below) the need for any surgical or medical transitioning and more on the cultural and social manifestions of sex. From there it has been a short step to legitimate gender identity, a wholly subjective and unverifiable concept. And this is exactly what the activists did as explained by Whittle and Turner:

“The sex/gender distinction,(where sex normatively refers to the sexed body, and gender, to social identity) is demobilised both literally and legally. Firstly, in the terminology of the Gender Recognition Act, gender identity becomes and defines legal sex: 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 [S. 9 (1)]. Gender then, now determines sex.”  ( Whittle and Turner 2007)

The confused wording of the Act here is taken by Whittle and Lewis to be not only evidence that gender and sex are interchangeable, but that gender is prioritised over sex, replacing it as the legal signifier of men and women. Although they go further and suggest it is gender identity not gender. The very confusion of language Lord Tebbitt had warned against enabled this radical interpretation: 

 “Firstly, the sex/gender distinction is demobilised with both terms in the wording of the act. Indeed, in the sex/gender distinction, female usually refers to sex, the sexed body, and woman usually refers to gender; the cultural meaning of female sex. In the terms of the Act the referents change round; gender refers to female and sex refers to woman. This suggests that the terms are interchangeable. Secondly, in the wording of the Act, gender precedes sex. Normatively in the sex gender distinction sex precedes gender; gender is culture written onto the sexed body. In the terms of the Gender Recognition Act, one’s gender precedes one’s sex.

“As the Gender Recognition Act states that one’s acquired gender becomes one’s legal sex then there is little difference between sex and gender. Indeed sex is preceded and exceeded by gender by the terms of the Gender Recognition Act. Sex in this sense is determined by gender identity, the social role that one chooses to take.

The concept of ‘gender identity’ was scarcely used in the debate neither does it feature in the GRA itself. However Whittle and Turner use the terms gender and gender identity interchangeably here.

Gender identity did not become part of the public discourse overnight. Originally it was used very specifically in relation to transsexuals as a way of making their condition more psychological – the mismatch between their body and the opposite sex that they really felt they were (Money 1975). Whittle and Turner describe it above “ the social role that one chooses to take.’  Today it is described by Stonewall as “a person’s deeply held internal sense of their own gender”, a very different concept.

It is only in recent years, we are told that, that everyone has an innate feeling as to whether they are male and female, it is just that most people are lucky and theirs matches with their biological sex. The only way that trans people are different is that theirs does not.  Recently we have seen a much more concerted effort for gender identity to be recognised as a category in public discourse and to actually be more important in the categorisation of people than biological sex. Stonewall, the prominent LGBT lobby group, which has been focusing on trans in its LGBT campaigning since 2015, has stated that it wants gender identity to replace gender reassignment as a protected characteristic in the Equality Act 2010 as well as wanting to get rid of sex protected spaces. There is plenty of evidence that it is already using the term, not sex when it refers to equality characteristics and other organisations advised by Stonewall are following suit.

Second consequence:  Biology demoted as no medical transition required

Even today most people regard transitioning as involving some kind of medical change to the anatomy in order for the person to take on the appearance of the opposite sex. This comes in the form of hormones (lifelong) and/or surgery. Many trans people have hormones, and the removal of breasts or construction of breast and face feminization, but the vast majority of trans people do not have genital surgery. There was considerable debate in the Committee about what conditions should be met in order for a person to be granted a GRC and thereby legally change their sex.

The assumption made by the Select Committee was that transsexuals would indeed transition medically but they decided (or were persuaded) that it should not be a pre-condition of getting a Gender Recognition Certificate as this was too harsh, potentially excluding some people for whom full medical transition would be detrimental to their health.

(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or

(b) treatment for that purpose has been prescribed or planned for the applicant,”

Prescribed or planned’ has been interpreted very loosely. This was also little noticed at the time and only a tiny minority undertake full surgery which many people even today do not realise. However they were clear that some quite stringent objective tests, including a diagnosis of gender dysphoria, should be taken before granting someone a Gender Recognition Certificate.

Lord Filkin ‘The appropriate test is whether a person has taken decisive steps to live fully in the acquired gender and there is clear evidence of gender dysphoria after a proper process of inspection and testing over a number of years. We do not intend to compel transsexual people to undergo surgery, even though most wish to do so.’

Back to Whittle and Turner’s article in which they refer again to Lord Tebbitt’s thoughts and spell out what they think the outcome of the Act is:

 “In his contribution to the debate in the House of Lords on the Gender Recognition Act 2004 (GRA), Lord Tebbit mobilises a discourse of sex based on chromosomes, as a somatic fact and thus immutable: sex cannot be changed by medical procedure nor by law. The Gender Recognition Act passed in 2004(achieved by relentless campaigning by Press for Change, the UK transsexual lobby group) does exactly that: it changes the legal sex of trans people in the UK and gives them full legal recognition.[1]. Moreover, the Act does not require any medical procedure (mentioned by Lord Tebbitt above), to change legal sex, as reassignment surgery is not mandatory.’”

The authors suggest that the lack of compulsion to have surgery now means that biology is no longer a pre-requisite for sex change, nor indeed is it important in determining whether someone is male or female. They continue, summing up what they believe to be the consequences of dropping the condition for medical transitioning  in the Act,

 “This reverses the usual legal gender attribution process where from the moment of birth, the presence or absence of a penis constitutes the baby as male or female the sexed body based on the genitals ascribes the gender identity and role of that person. In this scenario, sex determines gender. ““Thus when determining legal sex, the Court’s endorsement of the human rights basis for legal recognition of the new sex of post-operative transsexual people was the minimum line behind which the UK government could not retreat. The authorities had to provide legal registration which enabled trans people to enforce their rights to privacy and marriage to a member of the same natal sex under the European Convention.

However, as a minimum line, it was perfectly possible for a government to go one step further and to make legal recognition available to those who are pre- or non-treatment and thus include those trans people who for health, disability or other reason are unable or unwilling to undergo surgical intervention. This appears to be exactly what the Gender Recognition Act 2004 (GRA) has done.”

The UK government had inadvertently gone that one step further, informed no doubt by trans activists, although from my reading of the debate this was only done because of potential  health implications and not because they thought there would be an unwillingness to undergo surgical intervention as the authors suggest.

Any fears raised in the debate about the consequences of allowing male bodied people to become ‘women’ legally e.g. Lord Moynihan’s concerns about men competing in women’s sport as transwomen, were dismissed. Again and this cannot be emphasised enough, absolutely central to the wording and content of the bill was the belief that it affected only a very few people in the country

Lord Filkin ‘…we are talking about only 5,000 people in Britain. That is why this is such a unique and specific set of circumstances. This is one of the smallest minorities in our society, yet the evidence we have had prior to the Bill and during our debates shows that for that very small minority this issue is very significant. I think we have an obligation in justice to help them live their life as they believe it to be’ 

 But sixteen years on, this group has been redefined as transgender or even just trans and its meaning significantly changed with a shift away from a medical model to a social model to embrace a number estimated to be perhaps as many as 500,000. There are many definitions but Stonewall’s is perhaps the most comprehensive:

Trans is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, cross dresser, non-binary, gender queer.”

We are now talking about a very different group of people for whom the granting of a GRC through the GRA 2004 would never have been envisaged. Indeed even in a paper in 2009 on Human Rights and Gender Identity the European Commission differentiates between transgender and transsexual:

 “It needs to be noted that many transgender people, and probably most transsexual persons among them, choose to undergo this treatment, often including the elimination of procreative organs”.

Whittle and Lewis’s summary of how they believe the GRA resulted in a paradigm shift of the meaning of sex and gender.

One of the authors, Whittle, reveals his own influence to the proceedings in this chilling summary. And in it the authors clearly reveal how the consequences of confusing language and the lack of a condition requiring medical transition has resulted in the assertion that there is no difference between sex and gender, and that sex is actually preceded by gender and concluding that sex is in fact determined by gender identity.

“This (Act)  reverses the original gender attribution at birth which as based on the genitals (and strictly speaking not based on other known identifiers of biological sex such as chromosomes). For the Gender Recognition Act, the body is irrelevant, as neither bodily modification, nor the presence or lack of a penis is determinative. Moreover, the Gender Recognition Act is performative (see Butler 1990), in that as a form of speech-act, what it does is makes gender into sex in law. Indeed, as one of the authors was present at the meeting in the Department of Constitutional Affairs where the question of gender or sex was discussed, it can be verified that the decision to use gender was to bring a contemporary recognition of the complexities of the question to the Act.The decision to include sex as well as gender within the GRA was to acknowledge this and to ensure that the Act could not be challenged.”

what legally constitutes male and female has changed. We share Sandland’s (2005) view that as we can now have men with vaginas and women with penises, the act does undermine the binary of two morphologically distinct sexes.”

This was indeed what activists had been lobbying for and the Act now provided a theoretical legitimacy, which wasn’t challenged at the time, to push for further social acceptance of this view as well as influence policy.

Reform of the GRA 2004 ?

There was not a rush of trans people applying for a GRC following this 2004 Act. The total number of GRC’s given is estimated to be a total of about 5000, roughly what the lawmakers envisaged.  

However there has been sustained pressure in recent years from the trans lobby to reform the original Act. Are its conditions so onerous that thousands more people would apply for a GRC if they didn’t have to wait two years, pay £150 and get a medical diagnosis? These are side issues. The main proposal, published in 2018 was that trans people should be able to obtain a GRC purely by self declaration.

Most activists today say that trans people can do pretty much what they want without requiring a GRC. A recent article by GIRES said ” Secondly, those who have transitioned to live as women already have the right to enter women’s toilets, without a GRC and without having undergone surgery. They do, and have done so for years”.

It is true that there is very nearly self-ID in facto if not in law, thanks to an exceedingly influential lobby. The demand for GRC’s is not evident. But if successful the proposed change to the GRA would enshrine in law the concept of a self perceived gender identity and give it priority over biological sex. If you said you were a man, you were deemed legally to have been born male despite biologically being female and vice versa. After that it would be hard to reverse. After all Whittle and Turner said in their 2007 paper that “The privileges afforded by legal recognition and gendered belonging should never be underestimated’”

This then would be a fundamental re definition of men and women, certainly not the purely administrative solution for a discriminated against minority, that the lobby constantly claims. It has an obvious impact on the wider population, particularly women and girls which is why it is being challenged by women.

  Conclusion

There are of course many academic papers to be found on this topic but I chose this one because of the clear link between academic theory, trans activism and the law. The first two have developed in tandem and together they have informed government policy and law at the highest levels in countries all over the world. Both authors are veteran campaigners for trans rights.

I have attempted to illustrate how the Gender Recognition Act 2004, influenced and then interpreted by academic activists may have inadvertently enabled and even legitimated what activists were lobbying for; the prioritising of gender over sex. It is not hard to see why this is so important for a certain section of this minority- they can never biologically be female if they were born male and vice versa so the next best thing is to re define what male and female means and demote the biology. Permitting people to change sex legally on the subjective concept of gender identity would cement this process further.

Endnote

*Professor Whittle, a trans man, is an Equalities Law Professor who has been a key figure in the global trans movement, and was part of the group which developed the Yogykarta Principles in November 2006. These Principles, which address key legal frameworks regarding both sexual orientation and gender identity, have been hugely influential in obtaining legitimacy for the concept of gender identity at the highest levels eg. UN, Amnesty, Human Rights Watch etc. which in turn influenced individual country laws.

He was also present as an advisor at some of the 2003 debates and was special advisor to the Women and Equalities Committee on Transgender Equality 2015-2016. Ruth Hunt, former CEO of Stonewall. specifically credits the pressure group he founded, Press for Change, with handing the baton of trans lobbying to Stonewall in 2015 – see my post on her interviews below. His book the Transgender Studies Reader which was co- edited by Susan Stryker, an influential US transwoman was published in 2006.

The logic of lockdown

It seems that it was easier than perhaps thought to put us all into a lockdown situation… but rather harder to know how to let us out. The urgency of preventing the NHS from being overcome was laudable and the public went along with it. Plus the new communication from the government was to promote fear. Anyone could die. Now fewer than one third of ICU beds are Covid cases and the Nightingale which was hardly needed has been mothballed. Doctors’ surgeries and 111 calls have been much quieter over the past week or and some hospitals in London are receiving cases in single figures. So the original reason given to us for our lockdown is no longer there. But it has been replaced with another major one – the prevention of the resurgence of the virus, itself perhaps a consequence of the government strategy to lockdown and suppress the virus. There are five tests that need to be passed before it can be lifted. No one seems to have questioned these or asked why they chose these five.

  1. NHS ability to cope
  2. Sustained fall in daily death rate
  3. Rate of infection
  4. Supply of tests and PPE
  5. No risk of a second peak… (track and trace policy required to be in place)

The first as said above has clearly been met as there is now excess capacity in all hospitals. The data on which the predictions were made used the former NHS critical care bed capacity. We know that the NHS acted quickly and almost tripled this by using operating theatres, private hospitals etc. as well as building the Nightingale hospitals.

 The second test has also been passed as the peak of deaths is generally agreed to be on April 8th

NHS ENGLAND

The third test, the rate of infection is now estimated to be as low as 0.6 despite Professor Ferguson saying it would take five months to get it below 1. Germany began a relaxation of measures when their R = 0.7. The measure itself has been criticised by some with Professor Michael Levitt saying that without also knowing how long a person is infectious for, is not that much use. Should the use of a general R be the main determinant of strategy? We know that in a small infectious area like a care home it will be much higher than say in the countryside where it may be nearly O. We are not told on what data the measure R is calculated.

The last two tests are not tied into the demise of the illness but on the government’s ability to deliver testing and equipment and the introduction of a nationwide track and testing system. The economy and all our lives are further put on hold so that the government can do what arguably should/could have been done some weeks back. The mess up over PPE does not seem to have been resolved and there may be jobs to go at the end of all this, probably in procurement.  But neither  has the government explained its thinking behind the need or indeed the feasibility of tracking and tracing as a strategy for the ongoing suppression of the virus.

These two tests have given the government a reason to keep the lockdown longer and one wonders whether that is why they were included in the five tests to begin with. They know that by suppressing the virus rather than mitigating it, the risk of a second epidemic is higher (this warning was given in the Imperial paper, widely believed to have provided the ‘evidence’ for the sudden switch to suppression and lockdown) and they have concluded that tracking and tracing is perhaps the only effective way of stopping this from happening. Again I am just surmising here.

Surely we can demand some transparency as to the reasons why the last requirement of tracking is now so needed, that no relaxation of the lockdown can occur without it. Tracking and tracing was deemed an appropriate measure at the outset of an epidemic. The government started this well and then decided to stop.

“There comes a point in a pandemic where that is not an appropriate intervention,” Jenny Harries, the deputy chief medical officer. On March 14, officials signalled the contact-and-trace strategy for fighting the spread of the virus was ending, except for those in high-risk places like prisons or care homes. For everyone else, testing would be prioritised for those most ill in hospital.

Of course at that point the government was still following a fairly relaxed mitigation strategy of social distancing, to be followed by the closure of pubs and bars and large gatherings, to be followed by the demand that the over 70’s and vulnerable to self-isolate to a total lockdown for the entire population coming three days later.

The Imperial Paper was published on March 16th and recommended suppression not mitigation and without delay. And the government changed course. Frightening numbers were presented that no government could ignore. Even then arguably it was a bit late in the day for suppression as the virus had run rampage for a good month before this date. Other countries were doing the same, with Sweden being an outlier. The Swedish government decided to adopt measures which protected the elderly and vulnerable (and they concede that they were too late on this as well) and the impact of the illness on the healthcare system…just like our initial response of mitigation. The reason they gave for this was that it believed it to be sustainable whereas suppression by total lockdown of a population isn’t. Which our government knew at the time. And which is now proving correct. Nearly two months on and people are getting frazzled.

In the Imperial paper the downside of suppression is given “the major challenge of suppression is that this type of intensive intervention package will need to be maintained until a vaccine becomes available (potentially 18 months or more)”. This was not told to the public at the time or really has been since, for obvious reasons but it is being leaked out bit by bit in what I suppose they believe to be palatable bite sizes. However, asking us to stay in when nearly 1000 a day are dying and for a matter of three weeks  is a little different from now when the numbers in hospital have fallen and the consequences of an economy on hold are being felt.

But it is easy to see the bind the government is in. As the Swedish epidemiologist Prof Johan Giesecke said in his interview with Lockdown Unherd, once a government had made a decision of total lockdown, it is hard to come out of.

They knew that lockdown had to be lifted at some stage but Ferguson et al had also warned of a high risk of a second wave after suppression. Hence the government have gone now returned to the earlier tactic of track and test, despite the virus having been in circulation for at least two and a half months, and despite the fact that the authorities have absolutely no idea of how many have actually had the illness. The paper, like Dr Harries also says that suppression strategies are best introduced at the very beginning of an epidemic, so the government needs to get the country back to a situation that resembles the beginning of the epidemic. Hence perhaps its choice of the Isle of Wight as the first trial for track and test, where the numbers of those with the virus has remained very small. The Imperial paper refers to concerns about civil liberties with this method but that so far has not been raised by many in the public eye which is surprising.  MPs – where are you?  Not everyone wants such an intrusive measure on their phone.  How can this be a viable strategy when we have a population of nearly 70 million people and testing has barely reached the 100,000 a day level? Surely doing regular randomised surveys on parts of the population would have been a sensible way of at least getting an overall picture of the illness and how deep into the population it has spread. If this has happened I have not heard about it.

The more suppression the greater the risk of a second wave because there has been no chance for sufficient community immunity to build. So it is reasonable to ask why this was chosen as a long term strategy? The sacrifice is many people’s health, well – being, financial security, future, careers etc. This is not a temporary period of hardship for people. It has enormous repercussions for our society and economy and will do for many, many years. We will basically be a broke nation. The talk of bouncing back after a short period of difficulty has stopped.

There are clearly some questions that could be answered now such as has the Imperial Paper so far proved accurate – if not why not and what has been learned? Would 250,000 people really have died if we had followed a less stringent mitigation strategy? Are other approaches being taken into account? And fundamentally what exactly is the current goal, the logic behind it and the strategy? Is there an acceptance that the virus will remain with us at some level until a vaccine is found or herd immunity established? Is there an acceptance that some people will be ill and some people will die? By following suppression at what point can we resume normal lives without a vaccine having been found?

I cannot be the only one to bristle when I hear the “we are following the science” mantra. Mainstream media is finally beginning to give space to those questioning this ‘science’ eg. Newsnight. It is vacillating and dithering. Let us see what happens tonight. But the population deserve more transparency (and data on risk which I have written about in the another post) as to the reasons why they have been forced to sacrifice so much.

Covid, data and risk

What has happened to the earlier government message of – don’t worry unnecessarily, the vast majority of cases are not serious and do not require hospitalisation? This was given to us only six weeks ago and we already have a lot of data proving that this message was in fact correct. The ONS stats show that only 332 people under the age of 45 died from Corona virus (ONS figs up to April 24th).  Instead we are given a daily diet of catastrophe stories of young people dying by the media and the government has done nothing to assure people that this is highly unusual. No wonder fear has gripped the nation.

We now have a lot of data which the government choose not to relay to us. Instead we are given the daily numbers (not actually the daily, but taken over a number of days) of deaths and new infections. The latter data may change according to how many tests are being administered, making comparison difficult. Hospital figures are much more helpful in seeing the decline in numbers. The media is focusing on how we fare against other countries in terms of number of deaths despite knowing that we are probably all using different ways of measuring. This is not where the focus should be. We should be having a debate about the pros and cons of shutting down the economy and the whole population, and coming out of it in the best possible way. But to do that the public need proper information. About the risks and perhaps more about the illness itself.

This data should be communicated by the government rather than through occasional press stories. Are some people more at risk than others? The answer is an emphatic yes but to give these important details might have taken away from the overall message that we are all in this together, the disease is indiscriminate (it’s not) so that we obey and all stay at home. The facts may undermine this message.  But even if belatedly, journalists are beginning to report on some of the data that can readily be found on various government and NHS  sites eg. NHS England, ONS and ICNARC.

A virus cannot be fought and beaten by hiding from it. We are avoiding it and suppressing its spread. It can only be really beaten by a vaccine or herd immunity, that is sufficient numbers have had it or are immune enough to depower it.  For all the talk of vaccines, they are a long way off, maybe two years and maybe not at all. A vaccine for the HIV virus was never found. Hence we have some hesitation from the government on what to do next. But we are entitled to ask questions at this stage.

Who is most at risk from this virus?  

The figures in the Intensive Care National Audit Research Centre provide a lot of information about those who are receiving critical care for the virus.

Headline figures – all  Covid intensive care patients:

Average age is 60

72% are men

34% are from BAME backgrounds

And 33% are overweight according to BMI index

And a further 40% are clinically obese

The ONS figures on deaths tell us  twice as many men die as women in the age groups 50-70, one third more in the 70-79 age bracket before there is an evening out in much older age.

So possibly a fit seventy something old female would be less vulnerable than a 55 year old overweight male. Is this fact is influencing the very middle aged and male decision makers? Surely the public should know whether or not they are more or less at risk. Perhaps there is not enough understanding as to why these groups are overrepresented which is why there is no official comment on these figures. It is thought that a higher propensity to diabetes that BAME groups have may be one of the factors responsible for increased vulnerability as well as a lack of Vitamin D.  Research I hope is surely going on to discover why but these are still facts that should be publicised.

Maggie Pagano has written an excellent article in Reaction showing why the UK has such a high number of deaths… and inequalities loom large.

The most deprived areas of England and Wales have 55.1 deaths per 100,000 people compared to 25.3 in affluent areas. That is, people in the poorest areas died at twice the rate of those in more affluent ones. (ONS)

One consequence of poverty and indeed one measure of social deprivation is poor health outcome and we know that those with underlying conditions get hit the hardest. Ninety-five percent of people who have died with COVID-19 in hospitals in England had underlying health issues.

It is time for a discussion with as many facts given to the public as possible. If you know you are a high risk person, you presumably may be more careful than those who are not. There is a question of personal agency, which we have had removed from us perhaps for good reason but we should be questioning the rationale for it.

What is the risk for different groups of people and how far should people be allowed to take their own risk, without putting others at risk… This is a debate that we  should be having , that Parliament should be discussing. It is not just about the science. There are many scientific views. There are many routes being taken and these are political decisions.   We live in a democracy but nowhere is there a democratic debate. Where are the MPs on either side of the House challenging the current strategy and demanding more information? The consequences of this lockdown continue to multiply like the virus every day, the devastation to the economy, of young people’s futures and the toll on health and mental health needs to be brought upfront into the decision making process. This is about lives v lives. And to have that debate we need the facts. And we need honesty. If the government doesn’t know something, it should say so. We deserve to be treated like grownups now.

What’s in a Word?

Feminists have always quite rightly paid a lot of attention to language. Sheila Rowbottom said over forty years ago “language conveys a certain power. It is one of the instruments of domination”. I am old enough to remember how hard it was to get Ms acknowledged as a title so that women did not have to be categorised as married or single on every form. It was considered an extreme demand by feminists at the beginning and many women themselves would say, well I don’t mind, it isn’t that important etc. But it was important because for centuries, all of history to be exact, women have had no power to name themselves. As Mary Daly said ‘Women have had the power of naming taken from them’. Insisting on the inclusion of Ms in titles was a reflection of women finding their voice and making it heard. Lots of people didn’t like it.


Women are relative newcomers to the public sphere, and public discourse has been developed over the years by men and for men. Disrupting it and adding the ‘feminine’ or even changing words has proved extremely hard and meets with resistance. Minority groups have had similar struggles naming themselves instead of being named… so until thirty years ago people with cerebral palsy were known as spastics, people with disability were known as handicapped etc. etc.


Women in the business world still have to speak in a business language full of sports, wars and sex metaphors. They may jar but if you do not used them you will not communicate what you need to say. Many nouns that derive from verbs have ‘man’ at the end and even today many dislike adding woman instead e.g. salesman/saleswoman saying it sounds odd and artificial… more like an add-on than a different word. There has been a huge resistance to changing familiar words, rather like Anglicans wanting the King James version of the Bible to remain in church services and not the NIV. But listen to the radio or watch television and you will hear many more additions of woman to nouns as women’s role in public life is acknowledged more. Women’s ability to name themselves and their activities is still in its infancy.


Minorities and by minority I mean either numerically or those with fewer resources than the dominant group (like women) do not determine the dominant discourse. Feminists and male supporters of feminism may influence it, and this is what has been happening. So it is fairly extraordinary that a numerically tiny minority have been able to secure the erasure of female words with the majority of powerful dominant group standing by and allowing this without comment. Two things are going on here. One, the group is tiny numerically but powerful with regard to resources. On their side they also wear the badge of ‘most discriminated group’ which gives ‘liberals’ or those wanting to appear liberal permission to champion and accommodate their demands despite these being in tension with women’s rights including women’s rights to define themselves. Secondly and perhaps more disappointedly one wonders whether the male dominated establishment including liberal males are permitting this erasure as part of a backlash against women’s rights without it appearing to be so.


This is the context in which we need to regard the concern women are having about the removal of the word woman from public discourse. In order to appease a tiny but vocal and active group, organisations, including the government, are replacing the word woman without any consideration over the impact this may have on half the population. The word men and man seems to have been retained.

It is worth watching this video of the conversation that Julia Hartley-Brewer has with activist Laura Coryton on YouTube as these exchanges do not happen very often. You realise quickly why they don’t because the activist’s insistence that biological men are women and biological women are men and therefore men can have periods sounds so ridiculous. Better to fend off any debate with cries of ‘transphobia’ which is why there has been no debate. The activists and increasingly our organisations are no longer using the word woman and man to mean biological sex but indeed some ill-defined identity. Women’s ability to define themselves has been hijacked.


The word women has been replaced in certain medical notices and replaced with obscure descriptive nouns like menstruaters, and cervix holders so that ‘trans men’ can be included. This is biologically confusing and incorrect. The British Medical Association sent out guidance suggesting that practitioners do not use the word expectant mothers as it might offend trans people. A group of lesbians with teeshirts with ‘lesbians are women’ were refused service at the National Theatre last year as they were deemed offensive. Organisations are now making up new words like Womxn( the most recent being Oxfam) in a bid to be inclusive without recognition that they are being excluding of half the population.

The feminist project is based on a common understanding of the word ‘woman’. Woman is a biological sex category and their rights are given to them on that understanding. Trans people are just that, trans, and may well live their life socially as women or men. Some activists’ insistence on re defining woman as a social identity is offensive to women as is the insistence that women are themselves a sub category of women, cis women. Surely it is not too much to ask that women retain the right to define themselves. Language is not fixed and can change by use therefore it is imperative that we continue to use the word woman as we, women, want to use it.


References
Jean Bethke Elshtain ‘Feminist Discourse and Its Discontents: Language, Power, and Meaning’ in
Signs Vol. 7, No. 3, Feminist Theory (Spring, 1982), pp. 603-621
Dale Spender 1981 Man Made Language. https://www.amazon.co.uk/Man-Made-Language-Dale-Spender/dp/0863584012

Skills – whose skills?

The government has now published its proposal on immigration. It is based on the premise that the country only wants foreign workers who are skilled. Their outlined point system has highlighted one of the problems that plagues pay equality – the definition of skill. On the face of it this is not a gendered issue but a closer look will reveal that combined with the gendered segregation of work the ‘definition of skill’ is responsible for perpetuating women’s relative low pay compared to men. Pay level is not the only proposed entry requirement for people wishing to work in the UK but the focus on it reflects the government’s belief (and many others’) that pay is still the main indicator of skill.

 Despite the intention to lower the minimum salary threshold for ‘skilled jobs’ from £30,000 to £25,600 for those coming to the UK with a job offer, this would still leave swathes of jobs in many sectors deemed out of bounds for foreign workers, particularly out of London.  Social care is in the news as one of those sectors most hit and also the catering industry – both female dominated and reliant on imported labour.

The government’s proposals have also been met with dismay by the UK’s growing fashion manufacturing industry. Skilled jobs such as sewing machinists and cutters will not reach the skilled training requirements for entrants under the new system. Jenny Holloway, owner of London manufacturer Fashion Enter, says “I really object to the fact that our industry is regarded as cheap or low skilled labour and strongly suggest that the government should make the effort to visit manufacturers and see how skilled it is, labelling the new minimum general salary threshold of £25,600 as “unrealistic”.

Academics have long regarded the ‘so called’ objective category of skill as a myth.( Phillips and Taylor 1980, Cockburn 1985).  Far from being an objective fact, skill is often an ideological category imposed on certain types of work by virtue of the sex and power of the workers who perform them.

Historically, one of professional organisations’ and trade unions’ roles has been to protect the status and pay of their workers, creating barriers to entry where necessary. They have always tried to protect the skills cluster in their memberships often in the form protectionist strategies like training and exams as well as other more informal types of closure. This is to maintain the status of those skills, limit entry and ensure higher pay. If too many, and historically it was women, were able to demonstrate those skills and entered the profession or trade it would result in a lowering of status and in market forces lower pay. The status of work (and its accompanying level of pay) is not static. It can be challenged and change. There is an argument that just the very fact that large numbers of women work in an industry will mean it has a lower status. Work has been ‘feminised’ and women carry their lower social status into the workplace (Witz 1990). If you look at areas of work which are highly prized, they are likely to be very male dominated. At the beginnning of the computer age, computer programming was deemed eminently suitable for girls, nimble fingers for the keyboard, patience and attention to detail – women’s work.  In the West as computers’ importance rose computer programme became associated with science, rationality, binarism and masculinity. It was adopted by male hobbyists, gamers and later the dot.com entrepreneurs. Bill Gates and Stephen Jobs arrived and the image of a “geek” became synonymous with a technology worker and the shift from a feminine to a masculine skill was fully made. The accompanying shift was from low status to high status skilled work. And pay went up.

Both the gendering and valuing of jobs (not always the same but there is a huge overlap as women dominate low paid industries) can be revealed in some of the equal pay for work of equal value pay discrimination claims. One example I wrote about in my book was the 2010 Birmingham council workers equal pay case, which was won by female employees based on work for equal value. Under a bonus scheme male refuse collection staff sometimes received up to 160% of their basic pay. In one year a refuse collector took home £51,000 while women on the same grade (cleaners) received less than £12,000.

Currently the average pay for an underground train driver’s ( predominantly male)  average base pay of a Tube driver is £55,011.  The majority of London Underground train drivers, approximately 3,000 of them, made £70,000-£80,000 last year when overtime and benefits are included. Compare this to the average salary of a nurse in London which is £29,000.

These figures tell their own story about skill, status and value. The segregation of low paid work makes bringing any equal pay claims impossible.

Surely it is time that unconscious bias in the evaluation of skills  is more widely recognised as a contributing factor to women’s inequality in the workplace. Some companies have individually been doing this for some time, checking their assessment or partnership criteria etc. for signs of bias. But perhaps a more comprehensive approach to what does or doesn’t constitute skill needs to be debated at a social level.

Toilet talk

Today I wrote to Ms Kate Varah, the executive director of the Old Vic following its announcement yesterday that its new refurbishment now provided 42 toilets, but none of  which were for women only.  In the letter I set out the specific background to this announcement before asking some questions.

In 2018 the Old Vic announced loudly and proudly that it would be doubling the number of women’s toilets  and stars including Joanna Lumley, Glenda Jackson and Bertie Carvel  backed the campaign, and appeared in a video in which they plea for more women’s toilets.

The Old Vic launched a £100,000 public fundraising campaign to help it carry out major works, including doubling the number of women’s toilets.

Yesterday, October 2nd 2019, the theatre announced that the numbers had indeed increased. There was now one facility with eighteen toilets which also have urinals, making it unlikely that women will go in there, and then another set of 24 cubicles which are mixed sex.  So in fact it announced a removal of all women only loos – the opposite of the campaign in fact.  Men have access to all 42 whereas the 24 that women can use are also open for men to use.

“Our loos now offer ‘self-selection’ rather than being labelled male or female. This takes a descriptive, rather than prescriptive, approach following advice from surveys conducted with focus groups,” it said.

Who does this actually work for? The problem was a lack of women’s loos in the first place, that was all.

The announcement said that there had been consultation with focus groups but failed to say which ones. Indeed it failed also to provide any concrete reason at all for removing women’s sex segregated facilities. All previous surveys show that women prefer  women only toilets. On the positive side the theatre has asked for feedback – if only this had been asked for before the decision to do this.  I had a few questions for Ms Varah:

What happened…?  It is clear that you changed your mind on provision of women’s only  loos over the course of a year.

Why was this?

There is a mention of focus groups – what kind of focus groups?

Were you advised by any external consultancy?

What percentage of your theatre audiences is male?

What percentage of your theatre audience is female?

Did you consult your theatre goers?

Which of these wanted mixed sex toilets?

Who did want mixed sex toilets?

Why do you think sex segregated toilets existed in the first place? Are those reasons not applicable in 2019? What has changed?

There is an insufficient number of toilets for women generally throughout the UK because many were built at a time when women were more confined to the private sphere.  I suggest that the Old Vic was presumably very familiar with the reasons women require more toilets than men otherwise it would not have pledged to provide more.   Yet the reasons for the sex segregation of toilets are exactly the same today as they were fifty/hundred  years ago. A Parliamentary Committee Paper over ten years ago (on which Emily Thornberry sat) sets out the rationale and the recommendations – that women require twice the number of toilets than men do – which the Old Vic ( even though not a local authority, the advice should still apply)  has seen fit to disregard (particularly page 18 and 19)

And the reasons that mixed sex toilets do not work for women were more recently given in an excellent blog .

Someone who may have provided some advice to the Old Vic is Professor Clara Greed, Professor of Inclusive Urban Planning at the University of the West of England, Bristol, and a specialist in toilet provision with particular emphasis upon women’s needs. You can watch her here.

Any organisation that has been advised by Stonewall will know that they can earn extra brownie points by changing their toilet facilities to mixed sex. This is not done because of demand but because it looks progressive. This was not something even considered five years ago. But for whose benefit are these changes?  Fewer than 1% of the population are trans and that is on the widest definition given (this includes cross dressers, non binary etc.). Most organisations will have fewer than 1% of trans people for whom using a male or female toilet is problematic. Personally I have no problem sharing female toilets with a MtF trans but I, like many women don’t want to share them with men generally. And some women for reasons of past trauma, or for religious reasons do not want to share a facility with biological males, whether they are transgender or not. There is no point pretending biology is irrelevant – hence men use urinals.   So is there another way to include the potential trans person who may be embarrassed? Why not have one separate cubicle that is mixed sex? This is not always possible in old buildings but it certainly is in new developments such as the Old Vic. A year ago the Lyric theatre in Hammersmith made the downstairs toilets mixed sex but kept sex segregated ones upstairs.  So I am eager to hear the rationale for the decision to remove all  women only toilets whilst retaining men’s.

Sometimes and increasingly in this case, one very small minority group’s demand for rights disproportionately impact another’s in a negative way.  But women are half the population and their needs and concerns for sex segregated spaces are currently being dismissed and ignored in a shocking and distressing way.