Labour’s reaction to Kemi Badenoch’s plan to define sex is not only a hapless fudge, it’s legally illiterate
A friend of mine runs a residential writing retreat attended by women with experience of trauma and abuse. It is vital to those who take part that it is female only: past attenders have told her it enables them to talk about their experiences in a way they couldn’t if men were present. But she has begun to worry whether excluding all men – regardless of how they identify – might put her at risk of legal action.
I put her in touch with an expert to explain the law in this area. The upshot: it isn’t clear exactly when it is lawful to operate female-only services, and that ambiguity means she is right to consider the risk of being sued. For a freelancer it could ultimately be catastrophic. She has been agonising about this since and may stop running the retreat.
It’s the women who would lose out that I thought of when trying to make sense of the unhinged reaction to Kemi Badenoch last week saying the Conservatives would clarify the law. Lefty men with apparently zero understanding of the implications of this legal ambiguity jumped on the bandwagon to variously label as “ghastly” and a “transphobic crusade” the moderate proposal to clarify that the protected characteristic of sex in the Equality Act refers to someone’s biological sex.
The clarification is sorely needed because of the way the Equality Act 2010 interacts with the Gender Recognition Act 2004. The Equality Act protects people against discrimination based on nine “protected characteristics” that include sex and gender reassignment. The Gender Recognition Act allows someone with a medical diagnosis of gender dysphoria to apply for a gender recognition certificate (GRC) that entitles them to be treated as though they were of the opposite sex for some but not all legal purposes. It is unclear whether a GRC means someone male must be considered to be female for the purposes of the Equality Act; there are valid legal arguments on both sides.
What may seem like a legal technicality actually matters a great deal. The Equality Act includes important exceptions that allow the provision of single-sex spaces, services and sports. If having a GRC means that someone male must legally be considered female, it makes the test for lawfully excluding someone male who identifies as female from female-only services significantly more complex. It means that it could be unlawful to exclude a male with a GRC from female-only membership associations, such as a lesbian support group. It could make it impossible for a care agency to honour a disabled woman’s request for female-only intimate care, or for a woman in prison to refuse a strip-search from anyone male.
This really matters, because for many women the existence of single-sex services and spaces such as rape crisis centres and changing rooms is a matter of basic privacy, dignity and safety. This is particularly true given that some men who identify as female are open about deriving sexual fulfilment from doing so; that is their private business, but it is profoundly wrong to expect women to participate in that in public spaces. Moreover, there is the added complication that, while the legal test for excluding everyone male from a single-sex space may be fiendishly complex, it probably also constitutes unlawful discrimination not to provide female-only spaces and services to women who need them.
The law is a mess, and the situation is made worse by activists such as Stonewall who have taken advantage of the confusion to mislead people about what it says. How on earth are small organisations and people like my friend supposed to negotiate this minefield? I’ve spoken to several lawyers who practise in this area and all say the law badly needs clarification. The Equality and Human Rights Commission agrees. Spelling out that sex in the Equality Act means biological sex would make the law on single-sex spaces, services and sports much clearer, and so help organisations fulfil their rights and responsibilities to women. It would in no way undermine the act’s important but separate protections against discrimination for trans people under gender reassignment.
There is so much to criticise the Conservatives for on women’s rights and provision, but on this they are right, though they should have prioritised doing it before an election. So why the frenzied anger about Badenoch’s proposals? It is the symptom of a mindset often found in those who spend too much time online, which rots their critical faculties and drives them to see the world as a cartoonish set of heroes and villains. To them, Badenoch is hateful and so anything she says must be wrong. It doesn’t help that there are many men, including on the left, who feel little empathy for women who don’t want to be forced to undress or talk about their trauma in front of, or receive intimate care from, anyone male, regardless of how they identify. I also suspect that the heightened irrationality on display is a product of the different standards that black women are held to, whether they have the politics of Badenoch or Diane Abbott.
The polite way to describe the Labour response to Badenoch’s proposal is “legally illiterate”. The party claims that the law in this area is clear, despite the fact it is so unclear that, as the result of a judicial review that has made its way through the Scottish courts, in the next year or so the supreme court will have to try to interpret what parliament meant by “sex” in the Equality Act. Labour will argue that the problem can be fixed through statutory guidance, which is nonsense: guidance cannot change the law; only parliament can. As one lawyer I spoke to said, Labour’s position is to uphold the problematic status quo. If it goes ahead with its plans to make a GRC easier to get without first clarifying the law, it will make things worse.
But in a world where few journalists understand the laws and there is no shortage of people willing to express a zealous view based on vibes instead of knowledge, Labour has got away with it. Why expend political capital on solving a real and important issue when you’ve got pundits who will happily denounce it as the invention of an evil witch called Badenoch? It’s a win-win situation: the said pundits get the thrill of fomenting their culture wars, even as they performatively call them out; Labour frontbenchers escape accountability for their hapless fudge. It’s only the female survivors of rape and abuse who can’t access single-sex services who lose out.
Sonia Sodha is an Observer columnist
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