Unworkable
Ed Kiely
On stage at the Conservative Party conference, the health secretary, Steve Barclay, kept fumbling his words. Promising to defend women’s voices in healthcare, he mangled a reference to ‘biological sex’. Announcing his flagship measure, a rewrite of the NHS constitution, he stumbled again: the plans will ‘recognise the importance of dialog- … different biological needs and protect the rights of women’. His garbled remarks were translated in a briefing to the Telegraph: the government is planning to ban trans people from ‘single sex’ hospital wards.
Barclay’s last verbal slip was deceptive: he has little interest in dialogue. Senior NHS leaders see him as ‘vindictive’, a ‘micro-manager’ who is ‘hostile to the health service’. His proposed ban would place yet another burden on struggling hospitals. Bed occupancy across the NHS in England is over the recommended safe limit of 85 per cent. Staff shortages are critical and hospital estate is crumbling. The new guidance requiring trans patients to be accommodated separately from cis patients will create obvious risks to patient safety. It is also likely to widen the trans health gap. Trans people experience higher rates of physical and mental illness than the general population. Discrimination in healthcare services discourages treatment.
The legal grounds of the policy are also shaky. ‘Gender reassignment’ is a protected characteristic under the 2010 Equality Act, regardless of whether treatment has begun. Excluding trans people from a service is legal only as a ‘proportionate means of achieving a legitimate aim’. This test can be met only if there is evidence of systematic problems caused by the inclusion of trans people on hospital wards. More than a hundred Freedom of Information requests were sent to NHS trusts in 2022 asking: ‘How many natal female inpatients complained that a trans woman inpatient was being cared for in the same ward?’ All received the answer ‘none’.
Even if there were evidence of problems, some trans people – those with a Gender Recognition Certificate – are considered under the terms of the Equality Act to have changed sex. This removes the only legal avenue for their exclusion. It also raises the question of how such a ban would be enforced in practice. A trans woman with a Gender Recognition Certificate is bureaucratically indistinguishable from a cis woman. Her birth certificate, her passport and her driver’s licence will all identify her as female. There is no method of determining that she is trans, short of the illegal and invidious: either an invasive trawling of medical records or a humiliating physical examination.
Barclay’s proposed ban is unworkable, but that is beside the point – or rather, that is precisely the point. If these measures are ever introduced, they will become snarled up in litigation, offering ministers further opportunities to fulminate against ‘lefty lawyers’ and equality legislation. And by targeting trans people, they send a message to socially conservative voters. Hostility towards trans rights is highest among pensioners and those without qualifications, two blocs that proved decisive in the 2019 election. All the Tories have to offer them now is salvoes in a culture war.
Rishi Sunak’s conference speech offered a distillation of contemporary transphobia. In just thirty seconds, he raised fears about the corruption of children, echoed Barclay’s lines on women’s rights and concluded: ‘We shouldn’t get bullied into believing that people can be any sex they want to be. They can’t. A man is a man and a woman is a woman.’ He was rewarded with the loudest applause of the afternoon. These attack lines – combining talk of vulnerable groups, powerful bullies and unnatural acts – mirror those aimed at gay communities during the 1980s. As then, they intend to exploit discomfort in the Labour leadership over queer rights.
Keir Starmer has responded with characteristic equivocation. When elected as leader he positioned himself as a trans ally, proclaiming: ‘Trans rights are human rights, and your fight is our fight too.’ Now he freely employs trans-exclusionary language, saying that ‘a woman is an adult female, so let’s clear that one up.’ The shadow health secretary, Wes Streeting, has been even more blunt: ‘Men have penises, women have vaginas, here ends my biology lesson.’ The party has rowed back on plans to allow gender self-identification for trans people, promising only to ‘modernise, simplify and reform’ a system that retains a need for medical diagnosis.
These shifts are not only electioneering: they are also a response to transphobic currents among the membership and parliamentary party. The Labour Women’s Declaration claims eight thousand supporters of their campaign for ‘women’s sex-based rights’ against ‘gender identity ideology’, a term borrowed from far-right conspiracists. Five Labour MPs – including two shadow ministers, Jess Philips and Shabana Mahmood – have this week spoken at conference fringe events organised by the group.
These events rightly drew attention to the horrific rates of male violence against women. Yet the organisers and panellists also believe that cis and trans women are ‘two communities whose rights clash’, in Mahmood’s words. Gender self-identification is opposed because of fears that violent men would claim to be trans to gain entry to women’s spaces (evidence from other European countries suggests these fears are unfounded). But all too often the arguments slip into suggestions that trans people themselves are violent predators. Karen Ingala Smith – a panellist alongside Philips at the conference event – has claimed that ‘transwomen follow male pattern offending’.
In recent years, under the influence of well-organised campaigning, support for trans rights among the British public has plummeted. The number of people – 33 per cent – who now describe themselves as either ‘a little’ or ‘very prejudiced’ against trans people has nearly doubled since 2016. A future Labour government will surely avoid the spectacular transphobia of hospital bans. But if public attitudes continue to decline, an intervention under Starmer remains plausible: perhaps the careful unpicking of trans protections from equalities legislation, framed as a moderate and sensible response to legitimate concerns.
Comments
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18 October 2023
at
8:51pm
Jack Powell
says:
There is so much wrong with this post. For example:
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18 October 2023
at
11:14pm
Alice Bondi
says:
This is the most extraordinarily ill-informed, or perhaps I should say distorted, article. To take just one example: you write " ‘gender identity ideology’, a term borrowed from far-right conspiracists". But what is claimed, constantly, is that 'gender identity' is what really matters, and supersedes sex. So if those insisting on this approach are using the term, presumably this must mean that they themselves - including the author of this article - are far-right conspiracists. All the rest of us have done, with precisely zero influence from right-wing or any other conspiracists, is perceive that this is an ideology, a belief. Referring to 'gender identity ideology' is no more than a means of describing the very approach that the author and others adhere to.
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19 October 2023
at
12:24am
Catherine Murray
says:
Very disappointing to see a man telling left-wing women they are doing feminism wrong. The comments about Labour Women’s Declaration are an unwarranted slur: it is not transphobic to speak up about the rights women have fought for being rolled back.
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19 October 2023
at
11:23am
Margaret Bluman
says:
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19 October 2023
at
1:08pm
Alice Bondi
says:
This is the most extraordinarily ill-informed, or perhaps I should say distorted, article. To take just one example: you write " ‘gender identity ideology’, a term borrowed from far-right conspiracists". But what is claimed, constantly, is that 'gender identity' is what really matters, and supersedes sex. So if those insisting on this approach are using the term, presumably this must mean that they themselves - including the author of this article - are far-right conspiracists. All the rest of us have done, with precisely zero influence from right-wing or any other conspiracists, is perceive that this is an ideology, a belief. Referring to 'gender identity ideology' is no more than a means of describing the very approach that the author and others adhere to.
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19 October 2023
at
6:09pm
Emma Robertson
says:
"Even if there were evidence of problems, some trans people – those with a Gender Recognition Certificate – are considered under the terms of the Equality Act to have changed sex. This removes the only legal avenue for their exclusion."
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22 October 2023
at
9:59am
Cathy Devine
says:
I find this piece both offensive and totally lacking in integrity. I expect better from journalism. I am a founder signatory of the Labour Women's Declaration, a Labour Party Member and on the left of the Labour Party. No where near the political right. I am also an academic who specialises in sport policy for girls and women. Overwriting biological sex with gender identity as the eligibility criterion for female sports categories profoundly affects female sport because it permits male advantage into the very category designed to exclude it. This is patriarchy made over for the 21C. Female athletes do not support it and neither should political parties. The male journalist who has written this piece is clearly a fully signed up advocate of gender identity ideology (the claim that gender identity is a more important demographic category than sex) and is profoundly wrong. He should stop telling feminists how to do feminism. I expect better from the LRB.
Read more"But all too often the arguments slip into suggestions that trans people themselves are violent predators. Karen Ingala Smith – a panellist alongside Philips at the conference event – has claimed that ‘transwomen follow male pattern offending’."
Karen Ingala Smith is not saying that trans people themselves are violent predators. She is saying a trans woman has the same rate of offending as a cis man. Therefore trans woman are as dangerous to women as cis men.
Mr Kiely, as a biological male, however you identify, you must be treated as a man from a medical perspective. Men who identify as women on their NHS data put themselves at risk of receiving incorrect treatment. One has to ask why these men do so.
Good women and men of all ages and educational levels understand why women need single sex spaces, not only in hospital wards, but in prisons, toilets, and other places where we choose to gather as women. I can only assume that Mr Kiely is an overeducated young man if he fails to grasp this simple fact.
This is factually incorrect. The Equality Act allows for exceptions on the grounds of both sex *and* gender reassignment. The latter applies in cases where exclusion is a proportionate means to a legitimate aim, regardless of whether a GRC is present.
I would also take issue with the suggestion that the work of LWD women and supporters constitutes "transphobic currents". For anyone prepared to engage objectively, there are very clearly areas of conflict between the rights and/or interests of those that identify as trans women, in particular, and women. Sport is the most obvious example, with several comprehensive and detailed reviews (eg that conducted by World Rugby
https://www.world.rugby/news/591776/world-rugby-approves-updated-transgender-participation-guidelines)
now showing that male puberty confers lasting unfair advantage in tests of speed and strength.
Another is prisons. Prisoners claiming a trans woman identity have a significantly higher proportion of sex offenders among their number than those in the general male prison population (let alone the female).
In 2021 a judgment was handed down in FDJ v The Sec of State for Justice (https://www.bailii.org/ew/cases/EWHC/Admin/2021/1746.html), FDJ being a female inmate who claimed to have been sexually assaulted by a trans woman inmate, and wished to challenge the lawfullness of the MoJs trans inclusion policy. The judge observed that while the MoJ policy at the time was lawful, there was a conflict of interest between the wishes of male prisoners claiming trans identities to be housed in the female estate, and those of the female inmates who might reasonably be concerned for their safety in those circumstances.
As far back as 2015. Dr James Barrett, President of the British Association of Gender Identity Specialists, giving evidence to Maria Miller's WESC enquiry on trans policy (and a sympathetic witness) suggested that it was *naive* to assume that prisoners would not have a range of motives other than gender dysphoria, some nefarious, for claiming a trans identity.
Hospital wards, arguably, are an area where such a conflict of interest may arise.
The Equality Act exceptions themselves, along with the Public Sector Equality Duty are acknowledgements of the fact that the rights and interests of protected characteristics may sometimes come into conflict.
When that happens, it is essential that the issues are able to be discussed openly and objectively, which is what LWD campaign for in the Labour Party.
Knee jerk cries of "transphobia" are an impediment to this, and serve no one.
Ed Kiely and LRB owe LWD and the speakers at the fringe meetings, particularly those named, an apology.