It is five years since Labour’s then equalities spokeswoman, Dawn Butler, told a BBC interviewer that babies aren’t born with a sex. It was the high point of transgender ideology, which captivated all the politician parties to some extent in the 2010s.
Even the Tory minister, Penny Mordaunt, told MPs in 2018 that ‘trans women are women trans men are men’ – a genuflection to the quasi religious dogma that people can be born in the wrong body. They cannot of course, and this weird doctrine has been one of the most extreme examples of the flight from reason and scientific certainty on the left since the millennium.
Badenoch’s intentions are honourable and many women will support her efforts. There are a couple of problems, however
Now five years on from the Butler Doctrine, the Conservatives say they will change the Equality Act to assert the primacy of biological sex. The equalities minister, Kemi Badenoch, says she wants to stop predatory men from exploiting an ambiguity it the law which allows them to enter women’s single-sex spaces.
She also wants to stop devolved governments, like Scotland’s, from trying to change the law to allow trans people to ‘self-identify’ without any medical intervention. That famously led to a trans rapist, Isla Bryson, being placed on remand in a Scottish women’s prison, even though he had been male when he committed the offences.
Badenoch’s intentions are honourable and many women of all parties will support her efforts to prevent this kind of thing happening in future. There are a couple of problems, however.
First, the definition of sex. The Equality Act does already recognise sex as a protected characteristic. Moreover, even under the present law it is possible for women’s single sex spaces, such as a therapy group for victims of sexual assault, to exclude natal males if that is ‘a proportionate means of achieving a legitimate aim’. So in a sense the law already regards biological sex as primary. This was the substantive reason the UK government challenged Nicola Sturgeon’s Gender Recognition Reform Act last year, even though it was formally blocked under Section 35 of the Scotland Act 1998. The Scotland Secretary, Alister Jack, said it was incompatible with UK equality law.
Of course clarity is always a good thing and it is sensible to stress that ‘sex’ in the Equality Act always meant biological sex, given that progressives like the US academic Judith Butler say that sex is a social construct and even the Lancet tells writers to use the expression ‘sex assigned at birth’
However, there are still problems about the legal definition of ‘woman’. They stem, not from Scotland’s gender Bill, but the legislation that set the gender train running in the first place: the 2004 Gender Recognition Act.
This allows trans people to change their legal sex and alter their birth certificates to register their ‘new sex’. So, how does a rape crisis centre, say, ban transwomen if the law says they are legally female? What ‘paperwork’, asked the Today presenter Mishal Husain, will be used to exclude transwomen from single sex spaces? If they are legally women, in possession of a gender recognition certificate, can they be excluded without discrimination?
Shockingly bad from Kemi Badenoch on the 8:10 slot on the Today programme.
— Best for Britain (@BestForBritain) June 3, 2024
No grasp of the detail of this culture war-baiting policy. And says Liz Truss appearing on Carl Benjamin's podcast after his vile comments is "trivial" and "unserious".
Full thing here👇 pic.twitter.com/D66mtLGYmJ
That really is the issue here. Kemi Badenoch tried to bat the matter away saying that ‘it’s not about paperwork’. She suggested the exclusion of transwomen would be done on the basis of appearance if they are ‘visibly of a different sex’ as she put it on Today. The problem here is that some transwomen look almost indistinguishable from women, especially if they have had genital surgery, while some women can to the untrained eye look very masculine.
Is it really acceptable to make these judgments on appearance alone? Obviously not. Transgender reassignment is also protected under the 2010 Equality Act, as lawyers like Jolyon Maugham of the Good Law Project will no doubt argue that Badenoch is not observing.
Of course Badenoch is right that biological sex should have primacy and that the law should be clarified to put this in place. But until the 2004 Gender Recognition Act is reformed there will be natal men insisting that they are women and that they cannot be excluded from certain spaces. And there will be no shortage of well-heeled lawyers arguing their case.
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