The Sunday Times today reports that Jeremy Corbyn has had a row with his domestic policy advisor, Lachlan Stuart, over the fact that Stuart has suggested that “trans women remain biologically male”. The article goes on to quote a Labour spokesperson who said “A Labour government will reform the Gender Recognition Act and the Equality Act 2010 to ensure they protect trans people by changing the protected characteristic of ‘gender assignment’ to ‘gender identity’.”
Oh dear – where to start. Let’s start with the word – or rather non-word – “trans”. “Trans” on its own is meaningless – and I would argue the single greatest reason we have ended up in this gender-bending mess is the failure of media and commentators to distinguish between “transsexual” (which is a protected characteristic in law) and “transgender” (which is not).
The 2010 Equality Act could not be clearer. “Gender assignment” (to which the Labour party spokesperson referred) is not a protected characteristic. “Gender Reassignment” is. The Act states the following:
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.
That’s pretty clear. Only someone who is in the process of changing, has changed, or plans to change their sex – in other words a transsexual person – is protected under the terms of Gender Reassignment. Someone who is biologically male, has no intention of undergoing sexual reassignment surgery and simply wishes to be referred to, and treated, as a woman, is not transsexual but transgender – and as such, cannot claim protection under this, or any other section of the Act.
Yet much of the recent “trans rights” debate has focused on the very real difficulties faced by transsexuals, and argued that “transgender” people face exactly the same issues and deserve exactly the same protections. Or even that “trans women” deserve all the same protections as biological women. Well sorry, but no they don’t.
The legal protections defined in the Equality Act are all based on biological sex, and on the physiological attributes of sex. They are not based on “gender identity” – and crucially, never can be, without removing the existing sex-based protections.
As long as we allow sex and gender to diverge – as long as we allow that somebody can be biologically male yet “identify” as a woman – we will always have to choose whether to protect sex or gender. We cannot simultaneously protect both – to give just one example, in order to introduce a law that says anyone who “identifies” as female has to be considered female, we would have to override the right of those who have female anatomy to only be treated by doctors with female anatomy, and the rights of biological females not to have to share shelter or lodgings with biological males. As laughable as this may sound, such cases have already started to appear in our news, such as the NHS being forced to issue an apology to a woman who asked for her smear test to be carried out by a female nurse and found herself being called in by a clearly male-bodied nurse, who insisted that he was not male but “transgender”. Or the male-bodied “female” rapist incarcerated in a female prison, who went on to sexually assault other women in that prison.
So we need to start insisting that when journalists, broadcasters and activists talk about “trans rights”, they specify whether they are talking about transsexual people, or transgender. And point out that the two are in conflict. When the Labour party state that they intend to change the protected characteristic of ‘gender assignment’ [sic] to ‘gender identity’, they need to be forced to admit that this means removing the existing sex-based protections enjoyed by women and transsexual people under the Act.
Mr Corbyn’s policy advisor clearly knows, and understands, the differences between sex and gender. Mr Corbyn himself – and many others in the Labour party – not so much, it seems.