By David Warden
David was the founding chairman of the Dorset County Council LGBT Workers' Group and LGBT Representative on the Bournemouth & Poole Holocaust Memorial Day Committee. He is also an honorary member of Humanists UK and a registered member of LGBT Humanists. He recently gave a talk to Farnham Humanists on trans matters. In this article, he appeals to humanists to find a way through the current crisis by more open dialogue.
I'm very sad that four Patrons have resigned from Humanists UK: the writer and human rights activist Joan Smith, Labour peer Dianne Hayter (Baroness Hayter), virologist Eleri Wilson-Davies and the former MEP Carole Tongue. I can't help feeling that if we had a better-developed culture of open dialogue in humanism this could have been avoided.
The first section of this article contains some background information and then, in the second part, I will move on to some general remarks and observations.
On June 12th, Joan Smith tweeted: 'I've resigned today as a Patron of @Humanists_UK. I've campaigned for women's rights all my life & I can't support an organisation that opposes the EHRC's advice that the government should consider clarifying the 2010 Equality Act to protect women @SexMattersOrg @HayteratLords'
Also on June 12th, Dianne Hayter tweeted: 'I have resigned from Humanists UK – with whom I have campaigned particularly about freedom of beliefs & recognition of humanism. Now they have decided the EHRC is wrong even to advise the gov to clarify the definition of sex. They have lost the plot.'
Sex discrimination protection is based on biological sex
Holding a gender certificate does not give someone the right to access single-sex spaces for the opposite sex
If a job requires a woman or a man, that means their biological sex
Programmes for women can exclude all males
Transgender people remain protected against discrimination and harassment, whether they have a certificate or not
Humanists UK's briefing note on the proposed change to the Equality Act definition of sex (June 2023) includes this summary:
The Gender Recognition Act (GRA) 2004, in combination with the Equality Act 2010, currently defines someone’s legal sex as being either (i) the sex recorded on the original birth certificate or (ii) the sex they have acquired through having a Gender Recognition Certificate under the GRA
The 2010 Act permits different treatment between people whose legal sex has been acquired through a Gender Recognition Certificate and people whose sex is as recorded on the original birth certificate, where such action is a proportionate means of achieving a legitimate aim. This covers single-sex and separate-sex services including refuges or changing facilities, sex-related Genuine Occupational Requirements, and sex requirements in competitive sport
The Government is considering changing the definition of sex in the Equality Act, to instead mean ‘biological sex’ on the EHRC’s recommendation, despite there being no such definition in UK law.
The change is intended to create a de facto blanket exclusion of trans people from services they had previously enjoyed without concern or complaint, even where this cannot be said to be a proportionate means of achieving a legitimate aim.
This would remove the current protection from discrimination of the c.7,000 people currently in possession of a Gender Recognition Certificate and undermine the Gender Recognition Act, leading to people being treated as if they have not changed their sex in questions of sex discrimination.
As regards point 4, Sex Matters (FAQ section) argues that the proposed change '...does not mean that people are forced to use single-sex services for their own sex. In many situations where there are male and female facilities, an individual unisex option can be provided which does not rely on anyone declaring their sex or answering personal questions.'
On June 11th, co-founder and Executive Director of Sex Matters, Maya Forstater tweeted: 'On sex, gender and the law. The debate tomorrow [in the House of Commons] is about whether the government should clarify the law to make clear that having a Gender Recognition Certificate does not change someone from male to female (and vice versa) for the purposes of the law on sex discrimination. The question is did it mean to change it in relation to the Sex Discrimination Act (at the time) and later the Equality Act? (as Lady Haldane found) Or not? Or in any case, as EHRC say would it not be clearer and simpler and better for human rights if it hadn't?'
If you're confused, you're in good company. I'm not a lawyer and so I do not propose to try and get into the weeds of this debate. Instead, I would like to make some general remarks.
I find it surprising that Humanists UK seems to accept the idea that someone can 'change their sex', partly on the grounds that there is 'no definition of biological sex in UK law'. The definition of biological sex hardly needs a definition in law seeing as it is defined by biology. When someone transitions, they transition on the basis of gender identity and this may involve medical and surgical procedures to bring, as far as possible, their physical characteristics into alignment with their acquired gender identity. No one literally 'changes sex' and it is misleading to suggest they can.
I am concerned about the possible effect of this proposed change on the ability of transwomen to use women's toilets. Many transwomen have been using women's toilets for decades. Some transwomen 'pass' as female, and some no longer have male genitals. However, law and human rights are blunt instruments for resolving the controversy about this delicate matter. It would be far better, in my view, to resolve it situationally on the basis of social consent and reasonable compromise. Wherever this is not possible, then pre-existing gender-neutral facilities already exist in most places. All we need to do is have more signage so that 'disabled toilets' are rebadged to be 'inclusive' toilets – with a transgender sign as in the image above. I know that this option is supported by some trans people.
I do, however, support the broader thrust of the proposed clarification because it cannot be right that the questionable notion of 'legal sex' applies across the whole gamut of sex discrimination law. We need to protect trans people against discrimination, but this cannot mean that sex-based rights automatically accrue to trans people with a new gender identity. At the very least, if this is what the Sex Matters proposal is seeking to clarify then I support it.
Humanists UK is in a difficult position. No doubt it can be difficult to keep older feminists on board at the same time as younger, more 'woke' generations. But younger generations are not necessarily on the right side of history. The belief that liberation from oppressive gender stereotypes is best achieved by opting out of biological sex categories altogether is not progressive. It's regressive. In the 1960s, 70s and 80s we were able to be gender non-conforming without believing that we were trans. Many of us were gay. Some people are trans, of course. But the Cass Review of gender identity services for children and young people has found that, since 2014, there has been a dramatic change in the case-mix from predominantly birth-registered males presenting with gender incongruence from an early age, to predominantly birth-registered females presenting with later onset of reported gender incongruence in early teen years. This statistical anomaly should raise uncomfortable questions. We know that subjective feeling is not necessarily a reliable indicator of objective reality. Millions of people are certain that they have a relationship with Jesus and humanists have no difficulty in understanding that this belief, however subjectively compelling, is illusory. Self-identification as trans by adolescents is something which should be responded to with caution by responsible adults. Medical professionals should not be pressurised into providing 'affirmative healthcare' if this means, as documented in the interim Cass Review, that standard exploratory protocols are abandoned. If we fail to get this right as a society, there will be many more cases of young people mistakenly self-identifying as trans when they are teenagers and living to regret it in their twenties and thirties, sometimes after irreversible surgery which may have left them sterile and unable to have a sex life. Nor should millions of women be shamed for wishing to clarify the boundaries between biological women and transwomen. We should drop the needlessly provocative slogan that 'transwomen are women'. Transwomen are transwomen, as many transwomen will confirm, and they deserve to be validated and respected in that identity.
I believe that humanists should encourage a lot more dialogue about this complex and divisive issue. We need to involve trans, queer, questioning and non-binary people, as well as feminists and other stakeholders. It's imperative to combine rational thinking and open dialogue in this endeavour, even at the risk of offending some fanatics who wish to label all doubt and disagreement as 'transphobic'. Dialogue must rise above such unhelpful rhetoric.
Cass Review: Independent review of gender identity services for children and young people
Humanists UK Statement on Equality Act reform
Joan Smith article for Daily Mail https://www.dailymail.co.uk/news/article-12196063/JOAN-SMITH-Ive-quit-Humanists-UK-body-stood-science-reason.html