James Kirkup

The Catch 22 of Labour’s gender policy

The Catch 22 of Labour's gender policy
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Earlier this week, I wrote about David Lewis, a Labour member who was allowed to stand for election as a constituency women’s officer on the basis that he identifies as a woman under some circumstances. That report seems to have drawn some attention, not least from Labour HQ. David Lewis was told on Tuesday night that he has been suspended from the party and cannot therefore stand for election as Basingstoke CLP women’s officer. I’ll try to unravel the implications of that in a moment, but first I want to say something about David Lewis and the general debate around this case.

As is usual with debates around gender, a lot of people have strong feelings about this case, and have expressed them bluntly. On social media, David Lewis has been called all sorts of unpleasant things, accused of bigotry and other nastiness. That does not accord with my impression of him. On the basis of a couple of conversations and some exchanges via email, I do not believe David is a bad person or acting with any bad intent. He strikes me as a thoughtful, earnest person committed to polite and orderly debate about matters of public interest.

The same can be said of many of the other people involved in this. Some of the people who have commented on David and his case are committed advocates of trans-rights and believe firmly that policies, including self-identification, are fair and right. The vast majority of those people do not engage in nasty name-calling online or other unpleasant conduct: they just advocate policies they think will make life better for people.

In short, I hope (probably in vain) that this conversation can be had without allegation of bad faith, that this can be an exchange of views between people who are all, in their own ways, trying to do the right thing and who accept that this is true of others too.

Let’s start with Labour’s position. The party has a number of roles and positions that are reserved for women: all-women shortlists for parliamentary selection and women’s officer roles. Who counts as a women for Labour? The party’s National Executive Committee on Tuesday reaffirmed a policy of self-identification, meaning that those roles are open to “self-identifying trans women”. The force of that policy is that if someone says they are a woman, Labour accepts that they are a woman. The party does not check or verify a statement of self-identified womanhood.

The thinking behind that approach is that transgender people should not be subject to additional checks or “gatekeeping” simply to be accepted for who they are. Non-trans people don’t have to prove their gender, so why should trans people? That strikes me as a perfectly noble sentiment and the policy is advocated by many people with good intentions.

But implementing it in practice does raise some questions. First, there’s a legal debate: is this policy compatible with existing equality law, which allows Labour to reserve some posts for women? The law also offers a mechanism for transwomen to legally change their gender and be recognised in law as female, obtaining a gender recognition certificate. Labour does not require such a certificate and some people say that means it is contradicting the law by opening up “women only” posts to people who are, in law, male.

Which brings us back to David Lewis. David was born male and has lived most of his 45 years as a male. He was initially told he was eligible to stand as Basingstoke CLP women’s officer on the basis of a statement he made to the CLP secretary that he self-identified as a woman as per the party’s own rules. As he has since written:

“All I told my CLP was that ‘I self-identify as a woman” as that was all that the Party policy required. I was very careful not to lie or deceive in my communications. I also wrote a supporting document to be handed out which I consider to be truthful.”

He later spoke to me and I wrote the article that is now being cited by Labour as the reason for his suspension. By suspending him, I think Labour runs the risk of raising some difficult and maybe even impossible questions about its own policy. The party, as the NEC stated again this week, accepts trans women as women on the basis of self-identification. Many leading Labour figures, including Dawn Butler, the shadow equalities minister, have said they do not believe that someone who says they are changing or varying their gender should be questioned or tested over that statement: a person’s declaration of gender must be accepted as valid.

How can that approach be reconciled with the treatment of David Lewis? He said he was a woman. His local party accepted that statement and allowed him to stand for an all-women post. He was then suspended. The issue at hand is whether his actions contradict the position as set out by the NEC:

“Anyone attempting to breach Labour Party rules and subvert the intention of All Women Shortlists, women’s officers or minimum quotas for women will be dealt with via our established safeguards, selection procedures and disciplinary measures.”

How might David Lewis be “subverting” the intention behind Labour policy on women’s posts? One explanation is that Labour could be saying that David Lewis is not a “genuine” trans women but a man who simply says he is a trans women in order to stand for a women’s post and, by doing so, question that self-ID policy.

In the cloud of social media rage this case has generated, this explanation is quite common: a lot of people are on Twitter accusing David Lewis of acting in “bad faith”, of carrying out a “stunt” to make a point. Perhaps that is a reasonable interpretation of his actions. I make no comment on that. But I must observe that anyone who takes such an interpretation of David Lewis’s actions is taking a position that is impossible to reconcile with that policy of self-identification.

The only way to conclude that David Lewis is engaged in a “stunt” or is “abusing” Labour’s self-ID rules is to make a judgement on the validity of his declared gender identity. If you adhere to a position of accepting self-identified trans women as women (and thus entitled to women’s legal rights) then you have to accept David Lewis is a woman – because he says he is a woman. In this position, anyone who says they are a trans woman is, by definition, genuine. Indeed, there can be no other sort of self-identified trans woman.

You can only criticise or reject what David Lewis has done by saying he is not a “genuine” trans woman. And by doing so, you proclaim your own right to pass judgement on the declared gender identity of other people. That is to reject self-identification and accept the need for gatekeeping.

Nor is it sufficient to argue, as some do, that David Lewis’s own words constitute an admission of bad faith. Nowhere in his published remarks does he indicate that his declaration of gender identification is not sincere; he insists, as I noted above, that he has not said anything he considers to be untrue. Again, the only way to construe his words as proof of bad faith is to say that you judge his declaration that he is a woman to be untrue – and thus assert a claim that your judgement of his gender identity trumps his declaration of his identity.

In short, Labour policy's and the suspension of David Lewis opens up a conversation that involves asking fundamental questions about how an approach based on the principle of self-identified gender can actually be made to work in practice. This case has also proved that policies devised with the very best of intentions can run into trouble if they are not properly debated and considered first.

A proper debate about self-ID would surely consider the possibility of the sort of abuse David Lewis stands accused of. If anyone who says they are a woman must be accepted as a woman, what’s to stop men with bad intent obtaining the legal status of a woman for malign purposes?

The people who accuse David Lewis of bad faith should reflect on the fact that if he had not chosen to speak to a journalist about his actions, the Labour Party would not have had grounds to suspend him. If he was a bad man trying to subvert the rules, he could have simply stayed quiet and remained a candidate for a job that the rules reserve for women. I don’t believe David Lewis is a bad man with malign intent. But I do believe that such men exist.

If this article has made your head spin a little with the mental contortions required to follow the arguments I have so laboriously set out, I can only apologise, not least for writing like the failing philosophy undergraduate I once was.

But I also suggest you get used to this stuff, because this will soon cease to be an issue just for Labour. The Government will shortly bring forward a consultation that could see a move to introduce the principle of self-identified gender in English law. I wonder if ministers will have some answers to the questions that Labour and David Lewis have raised.