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James Kirkup

Starmer won’t talk about sex and gender. That’s a problem

Starmer won't talk about sex and gender. That's a problem
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Sir Keir Starmer doesn’t want to talk about penises. He’s going to have to do it anyway, and he’s not going to be alone. The Labour leader was interviewed by LBC’s Nick Ferrari on Monday, becoming the latest journalist to test Starmer on questions of sex and gender. Ferrari asked, can a woman have a penis?

Starmer’s verbatim response, offered with a pained expression and sorrowful intonation:

Nick, I’m not… I don’t think we can conduct this debate with… you know… I just... I don’t think, erm, discussing this issue in this issue helps anyone in the long run. What I want to see is a reform of the law as it is, but I am also an advocate of safe spaces for women. 

I want to have a discussion that is… Anyone who genuinely wants to find a way through this, I want to discuss that with. I do find that too many people in my view retreat or hold a position that is intolerant of others. I don’t like intolerance, I like open discussion.

Me too. Which is why I think Starmer, like other politicians, has to talk about penises.

Before I explain why, I should say I understand Starmer’s reticence. Not many people relish a public debate about genitals. In the last few years, I’ve written lots of articles that contain the word ‘penis’ and rarely felt comfortable about it. But it’s necessary, because in the end, much of the current public debate about sex, gender, law and policy comes down to penises.

Here are some facts to start us off. A person with a penis is different to a person without a penis. A person with a penis can do things that a person without a penis cannot. A person with a penis can do things to other people that a person without a penis cannot. That last fact is set out in English law

This is the Sexual Offences Act 2003, c42, part 1:

Rape

(1) A person (A) commits an offence if

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

In other words, a person with a penis can commit rape. A person without a penis cannot.

From that flows one of the organising principles of most human societies: people with penises are different to people without, in part because they pose a potential threat to those people without penises. Hence the existence of spaces where people lacking penises can spend time without the presence of people with penises.

Until fairly recently in Britain and other western societies, the existence of those spaces was largely unquestioned and undiscussed. We collectively took it as a given that we would provide such spaces, because that important difference between people with penises and people without meant such spaces were axiomatically necessary.

In turn, it was unquestioned that a person without a penis was entitled to spaces where they could be confident that they would not encounter people with penises. This brings us to the first reason Keir Starmer – along with other politicians – has to talk about penises eventually. Some women are concerned that changes in law and policy are making it harder for them to have those penis-free spaces. Some women are concerned that their right to have those spaces is being questioned. Here, I should note that a lot of nonsense is thrown up in response to such concerns:

Nonsense 1: This is transphobic because it suggests that transwomen who have penises are sexual predators who want access to female-only spaces to attack women. This (deliberately) misses the point, which is that this isn’t about anyone’s gender identity. It’s about penises. The women who say they want penis-free spaces don’t much care about the expressed gender of people with penises. They just want to have places where there are no people who have penises.

Here’s a quote that captures this point vividly well, from a survivor of sexual assault:

My attacker’s genitals and my sexual parts were involved in a bodily attack. He didn’t care about my identity and at that point I didn’t care about his.

Nonsense 2: Single-sex spaces don’t really matter, because people with bad intent can still enter them – ‘women-only signs’ don’t stop criminals. This also misses some points. First, none of the advocates of single-sex spaces are claiming that their mere existence is a silver bullet against sexual crime. But the existence of those spaces doesn’t hurt.

And most important of all, the practical value of those spaces is secondary to the fundamental issue here, which is consent. If some people who don’t have penises want spaces that exclude people who have penises, they should be able to have those spaces. End of story. Because any other outcome is a situation where some people who don’t have penises want to be able to keep people with penises out of their spaces but are not able or permitted to do so. And there are words for a situation where a person without a penis is not allowed to exclude a person with a penis.

That’s the first reason politicians need to talk about penises: some women have concerns that relate to penises, and those concerns should be heard and taken seriously. The second, related reason is possibly even more uncomfortable and goes to the very heart of so much recent debate about sex and gender. Here is a statement of legal fact: some women have penises.

This has been the case since (at least) 2004 and the passage of the Gender Recognition Act. That law allows a person who meets certain criteria to change their legal gender and be treated, to all intents and purposes, as being of the opposite sex. So a person who was born male and is later issued with a Gender Recognition Certificate is legally female.

Crucially, the qualifying criteria do not include ‘sex reassignment surgery’ to the genitals. It is legally possible in the UK for a person with a penis to be recognised as female. When the GRA was passed, parliament implicitly assumed that it was legislating for a small number (perhaps hundreds) of people who were then largely known as transsexuals.

Some people now consider that term offensive or at least outdated, because they regard gender identity (which has little or no basis in anatomy) to supersede physical sex. Hence the widespread linguistic shift from ‘transsexual’ to ‘transgender’.

That shift is seismically important, and its importance is ultimately about penises. It means that people with penises can identify themselves as women, and thus obtain the rights and status society grants women – including access to those single-sex spaces that were hitherto penis-free.

And when Starmer talks about reform of the law, he’s talking about the legal recognition offered to people with penises who identify themselves as women. Some such people are currently recognised as women in law and practice. Any politician who wants to change law and policy will have to say whether their changes would make it easier for more people with penises to be recognised as female, and whether that recognition should also offer access to female-only spaces.

Such politicians should also say whether they think people without penises have the right to spaces from which people with penises are excluded. They should also say whether the word ‘woman’ in its normal, everyday sense should be redefined to include people with penises, since that is what the current law at least partially does.

The mismatch between legal reality and public perception helps explain why this issue remains live and heated: politicians collectively created a situation where some women do indeed have penises, but very few of those politicians are prepared to explain this fact to the public. (An honourable exception here is Liz Truss, who didn’t skip a beat when Ferrari tested her on this last year, replying memorably: ‘Women do have vaginas, Nick.’)

But this criticism applies to Conservatives as well as Labour, incidentally: any Tory who thinks this is a useful culture war attack on Starmer should think twice. Unless you’re prepared to turn the clock back and repeal the Gender Recognition Act, your position is also that some women have penises (Broadcasters that enjoy ambushing Labour people with gotcha questions should take note that they can fairly deploy the same approach to Conservatives too. ‘Minister, isn’t it a simple statement of legal fact that some women have penises?’)

My guess is that until we have politicians who are prepared to put aside their squeamishness about genitalia and instead have an open, factual conversation with the public about law and policy, the sex-gender issue will remain a minefield for them.

And in the absence of that grown-up conversation, women, trans people and the wider public will all be left out and down. Which is why I hope that Sir Keir Starmer – and the rest of his colleagues in parliament – can get over themselves and start talking about penises.