ISSUES around gender identity, wider equality, law and policy have been much in the news recently.
A Scottish government attempt to overturn the UK government veto of a bill to make it easier to change legal gender failed. But Scotland’s leaders are pressing ahead (alongside other controversial measures) with a proposal to ban ‘conversion practices’ which, through defining these too loosely and not engaging enough with concerns, may again fail.
Meanwhile, after the UK prime minister, Rishi Sunak, made an anti-trans gibe in Parliament despite being told that the mother of a murdered transgender teenager was present, the harmfulness of culture wars was widely recognised. This awareness offers a chance to bring together people with varied faiths and beliefs seeking a more just and compassionate world, if willing to acknowledge the complex practicalities of advancing equality for all.
This is even more urgent because some well-known politicians in Westminster and beyond continue to advance policies likely to further damage trans and other minorities, women and the economically disadvantaged, often seeking to play off different marginalised groups against one another. Basic principles of laws meant to protect and advance equality, children’s wellbeing and human rights are under threat, ultimately affecting everyone.
This article builds on ideas explored in a piece in June 2023 , about a positive way forward after the Gender Recognition Reform (Scotland) Bill was blocked. Whatever the weaknesses in what I propose, the aim is to encourage reflection and dialogue (difficult and sometimes painful though this might be), at a time when major threats are posed by a type of politics based on worsening fear and division among communities
Probably all of us occasionally downplay the impact of certain types of exclusion, gloss over dilemmas arising from contrasting needs and experiences or fail to take account of the unintended consequences of laws or policies; and so get things wrong. Dismissing disagreement as necessarily motivated by bigotry or hate is not only unfair but can also be disheartening to the minorities or women whose interests are supposedly being championed and make it harder to identify actual hostility. Greater sharing of experience and ideas among those broadly seeking a more just and compassionate society and world, even if they disagree on aspects of this, is vital, especially at this time.
This is not to say that prejudice may not be an issue or that it is not painful to be on the receiving end, yet this applies also to people convinced they are on the side of progress. And even modest advances may be better than none, perhaps paving the way for further improvements, in a climate in which economic and social inequalities are in many ways worsening. Even those convinced that their own position is correct in every detail may find that patience with disagreement and compromise are occasionally advisable.
An eventful time
In recent months, senior figures in the ruling Conservative Party and their media allies have been vigorous in stirring up sentiment against minorities and immigrants, to the embarrassment of more moderate colleagues. A ‘war on woke’ was seen as a vote-winner, at least in internal leadership elections – though by February 2024, it was becoming apparent that this approach might backfire and lead to the party or key backers being viewed as too extreme or irresponsible.
This included repeated negative references, at the Conservative conference in October 2023, to the hazards of taking trans equality too far, without bothering to balance this with even token gestures of concern for the wellbeing of that section of the population. Kemi Badenoch, minister for women and equalities as well as trade secretary, made little effort to show she took seriously the Equality Act’s provisions on preventing anti-trans discrimination and fostering good relations across communities. The prime minister, Rishi Sunak, implied that knowing who was a woman was just “common sense.”
In a notable exception, Michelle Donelan, the science, innovation and technology secretary, while in some ways echoing the culture wars narrative (1), said that “any credible scientist will tell you that gender and sex are two different things.” While this is somewhat exaggerated, since there are debates in the scientific community, the distinctions made by the World Health Organisation,(2) for instance, are helpful, in my view. It refers to the different, though connected, concepts of gender, which is socially constructed and linked with inequality (e.g. being a boy or girl, man or woman); sex, referring to different biological and physiological characteristics (being male, female or intersex); and gender identity, “a person’s deeply felt, internal and individual experience of gender, which may or may not correspond to the person’s physiology or designated sex at birth.” While each person’s experience is unique, all these factors may influence health and wellbeing.(3)
Draft guidance for schools in England on gender identity was issued in December for consultation, after much delay. Less extreme UK ministers (in particular the education secretary, Gillian Keegan) and the current law appear to have stood in the way of more drastic wording.
Nevertheless, government lawyers warned that following certain parts would leave schools at high risk of being successfully legally challenged and trade unions have expressed concern. In addition, the guidance was so focused on what staff should not do that it left them dangerously ill-equipped to support children who were uncertain of their gender or perceived this as different from what is expected,. It also served other pupils poorly, who might be left unprepared for the expectations they would face in adult life, in particular relating well to colleagues, customers, clients or service providers who are trans women or men (4) or non-binary.
It was unclear too, how this would be compatible with the Gender Recognition Act 2004, under which people can change their legal gender from the age of 18, after living in the acquired gender for two years. This implies that, by the age of 16, some people may be socially transitioning.
The draft guidance was also badly worded, for instance, the claim that gender identity is “a contested belief. It is a sense a person may have of their own gender, whether male, female or another category such as non-binary. This may or may not be the same as their biological sex. Many people do not consider that they or others have a gender identity at all.” Setting aside potential confusion between sex and gender (admittedly terminology differs), surely it is hard to contest that many people have a strong sense of being a boy or girl, man or woman or neither based on more than their bodily shape or birth certificate; and that in some cases, this is not typical, even if there are varied views on how best to respond.
In addition, for at least some people, this will continue across their lives, however strongly it is discouraged. In earlier generations, often despite heavy social penalties, there were people who identified in ways uncommon among those of their sex at birth. Frequently they, as well as people who were lesbian or gay, made strenuous efforts to conform in terms of their thoughts as well as behaviour but failed, while these attempts often damaged them and sometimes people close to them. Even in societies where being trans is criminalised, some people are.
Government ministers, whatever their personal ambitions, likes and dislikes, are required to provide protection under the law to all entitled to this. While nobody should be pressured into transitioning where this is inappropriate, the safety and developmental needs of young people wondering about, or at enhanced risk of isolation or bullying on account of, their gender identity, whether or not this persists into late adolescence and adulthood, should be addressed.
The guidance also served to deflect attention from the government’s failure to tackle the influence of sexism on schoolchildren,(5) stating that many people believe the concept of having a ‘gender’ different from biological sex “is one that reinforces stereotypes and social norms relating to sex.” Some people do hold this view and sometimes gender stereotyping is found in materials promoting, as well as opposing, greater trans inclusion, as in so much targeted at young people, from toys and clothes to social media. Yet many people who are trans themselves or trans-inclusive would strongly uphold the value of freeing girls and boys from pressure to fit into a restrictive mould – and perhaps share the aspiration of gender-critical feminists for a world in which existing labels no longer carry weight, even if there are different views on how to achieve this.
Also, NHS policy changed so that in England – though this did not apply to Scotland and Wales – specialist doctors could ordinarily not prescribe puberty blockers to children they thought would benefit except during clinical trials. Concern at previous gender identity service failings, with a rush to prescribe in some instances and lack of adequate safeguards, should not result in going to the other extreme. Unhurried specialist psychological support for children questioning or distressed about gender and their families, tailored to each child’s needs and with the option, where advisable, of gradual steps towards social transition and occasionally even use of puberty blockers (learning from outcomes and continually seeking to improve), is better than further marginalising such young people, some of whom would then seek help from dubious online or in-person sources. Those who find that they are not trans, yet may still face hassle for not fitting social norms around gender, should also be supported as necessary.
But on this and other matters, Liz Truss, a former prime minister, pushed for a new law which would bring in far harsher restrictions. She wanted, in England, to criminalise doctors prescribing puberty blockers to under-18s who were not already taking these; and to prohibit any public authority from taking “any steps to recognise, or enable the recognition of, children as having a gender that is inconsistent with their sex.” The latter may have been modelled on the notorious Section 28 in 1988, though more likely to be partly enforceable.
Truss also sought to amend the Equality Act 2010, which covers Britain, to make it clear that ‘sex’ refers to biological sex at birth. But this took no account of the right not to be discriminated against on the basis of association and perception, which would ordinarily extend sex-based to gender-based protection.(6) Nor did it comply with the public sector (as well as general) equality duty, which might require reasonable alternative provision when there was a substantial need, and the right to privacy for adults, at least, who had transitioned and posed no risk to others.
From divide and rule to policy-making with broad support
Sometimes politicians have increased their power, and diverted attention from their failings, by promoting rivalry and mistrust among those they govern. This has been easier when campaigners prioritising equality for different marginalised or excluded groups have failed to understand one another’s perspective. For example, despite a dismal UK government record over the past decade on equality for women and girls and for lesbian, gay and bisexual people, ministers seeking to portray themselves as protectors of rights based on sex and sexual orientation have tried to exploit beliefs held by some gender-critical feminists.
It is sometimes assumed that, if transwomen’s experience tends to differ in significant ways from that of women registered female at birth, including being spared some types of sexism, similarities can be overlooked. Yet this takes insufficient account of complexity; and may assist a rightward shift in society which may propel politicians such as Miriam Cates and associates into positions of power, which may negatively affecting women’s and gay rights. More generally, it sets a dangerous precedent when ministers attempt to override principles such as allowing professionals, public bodies and civil servants, in some instances, to make independent decisions not based on party politics; and requiring that they act in proportionate and legitimate ways, a feature of public law as well as the Equality Act.
Yet campaigners, legislators and policy-makers in favour of greater trans inclusion have also sometimes taken an all-or-nothing approach which has ended up being counter-productive. Even when experience has indicated it would be advisable to change tack, at least for tactical reasons, some leaders seem reluctant to do so. For instance, while it is understandable that the notion of biological sex might evoke distress for some people wanting to transition physically or who have done so, hostility by certain thinkers and activists to recognising its importance (along with that of gender identity) has made arguments for inclusion weaker, not stronger. From unequal treatment in infancy of those born female, to inadequate healthcare when giving birth or job discrimination afterwards, this may affect how one is treated by others, as well as physiological and genetic factors.
Furthermore, there is considerable public support for ordinarily, taking on board trans people’s wish to be addressed and treated in line with their gender identity. But when coupled with a push to make even reasonable and proportionate sex-based exceptions unworkable, and indeed, to label anyone in favour as viciously transphobic, this may come up against greater resistance. As well as making it harder to win support for a less medicalised process for gender recognition, this may make it easier to roll back current legal rights. Even those who believe the positives of eradicating all distinctions would outweigh the negatives may find that some flexibility is helpful.
If, for example, a part-time supermarket manager who was born male reveals that she has long privately identified as a woman and asks to be known by a new name and described as ‘she’, many would be happy to comply. If she is also a heavyweight sumo wrestler, they might be keen to ensure she can still pursue her sports career, at least in an open or similar category, with safe and private space to change clothes and shower. Yet some of those might think it unfair or unsafe if she were to get into the ring weeks later with an opponent born female who was only half as heavy and strong.(7)
In Scotland and elsewhere in the UK, an especially contentious issue has been the extent to which women in prison, who are often survivors of male violence, should be required to share spaces with sexual and other violent offenders designated male at birth who declare they are trans (obviously very different from the average trans woman). While the latest Scottish Prison Service guidelines indicate that such offenders would not ordinarily be placed in women’s prisons, some might be accommodated there if the risk is judged acceptable. It is not clear how this would be assessed and whether psychological as well as physical risk would be considered. Others with a track record of rape or other violent crime would be given access through work parties, activities and programmes. As well as re-traumatising victims, this would appear to undermine rehabilitation of violent offenders, even if they do not reoffend when in custody, reinforcing the view they might have absorbed early in life that most girls and women are there to be used.
Undoubtedly, many of these are vulnerable in male prisons, whether or not they are enduringly trans – but they could be housed and provided with activities with other such prisoners, which from their perspective should equally count as women’s accommodation. If the companionship of women who are not trans is judged beneficial, this could be provided by volunteer visitors.
Another faultline is around freedom of belief and freedom of expression. A succession of UK employment tribunal cases (e.g. AB v Royal Borough of Kingston Upon Thames, David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited, R Meade v Westminster City Council and Social Work England, J Phoenix v The Open University) indicate that transgender staff and clients should be protected from demeaning treatment such as misgendering but also that employees with gender critical or otherwise not fully affirming beliefs should not be victimised for these.
It can be painful to be on the receiving end of prejudice and misunderstanding, or to have to make a case for what one sees as full equality rather than this being taken as given. Yet treating all instances as more-or-less equally damaging and seeking to stamp out opposing views undermines, rather than promotes, the quest for a more just, compassionate and equal world. This includes opening the door to state repression, which may be paradoxically framed as a bid to protect freedom or safeguard threatened identities. Also it can be demoralising if those oppressed are encouraged to downplay any advances made by their or earlier generations, focusing on being victims, while at the same time disregarding others’ experiences unless conforming to pre-set patterns. And basic freedoms, while enabling people to act wrongly sometimes, can create space for them and their communities to develop and flourish physically, mentally and spiritually.
For example, the advances made towards greater equality for lesbian, gay, bisexual and transgender (LGBT)+ people in the UK over the past six decades have largely resulted from being able to express views which many saw as contrary to the public good. The increasing recognition among Christians that celebrating same-sex partnerships and creating space for gender diversity are in line with biblical values has been gained by making a persuasive case, including sharing personal testimonies, rather than trying to silence those not yet convinced. Parallel processes have gone on in other major faith communities.
The UK government’s ongoing stalling on a promised (at least partial) ban on conversion therapy, which is usually futile and often harmful, has led to various alternative bills (https://commonslibrary.parliament.uk/research-briefings/cbp-9972/) being proposed. Some go beyond organised provision aimed at changing people’s sexual orientation or gender identity, which tends to apply psychological pressure wielded by a supposed expert and to draw on pseudo-science and/or a supposedly faith-based rationale. This has intensified questioning about how to protect other freedoms while reducing activities harmful to health. In a debate on one such bill in the House of Lords, Ruth Hunt, a former Stonewall chief executive, sounded a note of caution. She suggested that there are “different types of responses to sexual orientation and gender identity: affirmative, curious, and furious”, which all differ from “abusive conversion practices”. She could have added a fourth category, falling short of ‘furious’: ‘discouraging’. In faith-based communities, families and friendship networks, likewise, some people may believe it is wrong to eat meat, serve or refuse to serve in the armed forces and so forth and discourage other members from doing so without hostile intent.
The Scottish government’s proposals seek to ban “conversion practices” – focusing on “behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity”, including seeking to control a child’s appearance or where they go – a sweepingly wide definition. This could result in a seven-year prison sentence. A scathing legal opinion by Aidan O’Neill KC (though commissioned by the Christian Institute, which is often justifiably criticised) usefully sums up much of what could go wrong. As he points out, this could result in criminalising parents who stop their 14-year-old daughter from going out dressing in what they regard as an overly sexualised manner or their adolescent son from displaying in his bedroom pornographic images of women or accessing hardcore heterosexual pornography, “on the basis that the parental action is stopping the child from living or acting in accordance with how their child wishes to express their (hetero)sexual orientation and/or (cis)gender identity.”
In terms of further possible infringements of human rights and equalities principles and laws, the consultation document emphasises that extending the ban to suppression is particularly likely to affect racial minorities, referring to a 2022 report. However this, while taking an almost wholly negative view of the effect of minority ethnic culture and faith on young LGBT+ people, which some might think biased, warns about “the impact of criminal measures and civil measures upon minority ethnic faith communities and communities of colour,” especially “due to historically established prejudice and discrimination within the criminal justice system.” The planned legislation overrides such concerns, with grave potential consequences. This is not to say that adults and older siblings from all, including marginalised racial and religious, communities should not be stopped from mistreating children – but there are already systems in place to deal with this.
A new hate crime law in Scotland, which extends the scope to disability, sexual orientation and transgender identity among other issues, could in theory increase protection for minorities at risk. However its introduction has been questionably handled, for instance police training absurdly implying that being a gender-critical feminist is a gateway to murderous anti-trans radicalisation, deflecting attention from the actual rise of extreme right terrorism, mainly from men who may be misogynistic as well as anti-minority.
There are many opportunities for people with varying views and experiences, but who by and large seek a more peaceful and caring world, to be brought together on issues on which they agree, and encouraged to grow in mutual understanding when they do not. Amidst a surge in negativity by top politicians and sections of the media towards minorities, including migrants and people who are trans, it may be tempting to treat any questioning of measures meant to move towards greater inclusivity as almost heretical. Yet this approach has repeatedly backfired, in Scotland and beyond.
A more nuanced stance which nevertheless attempts to advance equality and human rights, while recognising the complexities and potential for being wrong at least occasionally, is more likely to be effective. Amidst a shift in much of the world towards authoritarianism and scapegoating, overcoming divisions among and within communities is all the more important.
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© Rosemary Brien is a writer and equalities campaigner.
Notes
[1] That someone on whose behalf a payout for damages was later made, after false allegations against academics and worrying interference, was more moderate than some ministers is a worrying sign of a swing to the far right.
[2] Definitions vary. The World Health Organisation (helpfully in my view) suggests that “Gender refers to the characteristics of women, men, girls and boys that are socially constructed… Gender is hierarchical and produces inequalities that intersect with other social and economic inequalities… Gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs. Gender and sex are related to but different from gender identity. Gender identity refers to a person’s deeply felt, internal and individual experience of gender, which may or may not correspond to the person’s physiology or designated sex at birth.”
[3] Some people may – e.g. for (I believe misconceived) religious reasons – wish these were completely aligned, so that what society expects of those born female, as well as their self-understanding, is broadly in line with, say, the local ideal of womanhood from previous centuries. Yet it is surely hard to deny that even in earlier eras, many did not behave or identify in expected ways. In addition, both gender identity and sex at birth may affect how people who are transgender are treated by others, e.g. a trans man may be treated more favourably than equally qualified women when applying for a job in computing yet have been harmed by sexist stereotyping in early childhood.
[4] I refer here to those who identify as women and men respectively. There are different ways in which people may identify, linked with personal and cultural factors; for instance many, though not all, South Asian transwomen identify as ‘third gender’ (which may count as a type of non-binary identity) rather than women, though this varies. There have been visible trans communities in some societies since ancient times, a reminder that the fear held by some ‘conservatives’ that such openness inevitably leads to civilisations collapsing is ill-founded. At the same time the notion promoted by some ‘progressive’ Western organisations that ‘trans women are women, trans men are men’, and that any reference to transwomen or transmen not based on this assumption is offensive, should not override people’s own sense of who they are.
[5] See for instance, from 2023, the parliamentary Women and Equalities Committee report Attitudes towards women and girls in educational setting’; and End Violence Against Women and Girls, It’s #About Time: A Whole School Aproach to ending Violence.
[6] If, say, a manager interviewing candidates for an engineering post assumes that anyone born female is unlikely to be suitably technologically skilled, and fails to shortlist a trans woman called Wendy, though a strong candidate, because he thinks she falls in this category or, if he has met her, that she has a “feminine mind”, this counts as sex discrimination, however sex is defined.
[7] It is unhelpful that any restrictions on trans women competing with other women, while free to compete in another category – even if such limitation is wrong – are sometimes described as a total ‘ban’ on playing.