If the country has not had enough sex by now, it may have by the election*. Political sex, that is – Rishi Sunak has clearly spotted an opportunity for a fully frontal attack on one of Labour’s weak spots. This morning, the Prime Minister promised that if re-elected, his government would rewrite the Equality Act to make it clear that sex means biological sex.
It would be a sensible move away from the current confusion where nobody is really certain what the law means. Perhaps in 2010 the outgoing Labour government never imagined that the definition of sex would be controversial? But the text of Labour’s Equality Act – ‘a reference to a person who has a particular protected characteristic [of sex] is a reference to a man or to a woman’ – has been wide open to interpretation.
Sunak’s proposal would still leave us with difficult questions. Firstly, it is easier to characterise sex – in terms of chromosomes, gonads and external genitalia – than it is to define it. Where, for example, do CAIS (complete androgen insensitivity syndrome) women fit into these proposals? They have an intersex condition that means they have XY chromosomes and testes that produce testosterone, but their phenotype is female. It would be absurd to define them as men.
The underlying truth, of course, is that the perception of sex is an evolved instinct. We all know that a man is a man and a woman is a woman. That’s ‘just common sense’, according to what Sunak told the Tory party conference last year. It’s unlikely that service providers are going to start demanding proof of legal sex from everyone who turns up on their doorstep. But when instinct suggests that the transwoman standing there is male rather than female, Sunak’s proposal would give the provider confidence to ask for paperwork.
That would be a good thing. For too long the system has been open to abuse by chancers and abusive males who perhaps see an opportunity to impose themselves on women. Of course, someone with a Gender Recognition Certificate would be able to produce all the paperwork to suggest that they are the opposite sex. At the moment, birth certificates altered under the Gender Recognition Act look just like any other birth certificate. No public record is made of the change of legal sex. If Sunak wants to change that, he will need to also open up the GRA.
None of this is insurmountable but the legislative changes would be rather intricate – certainly for the new law to be fair, consistent and robust. That would however be for the next parliament. The focus now is the election, and how Labour might respond. The party manifestoes are yet to be published – so we cannot be sure what will be pledged – but LGBT Labour has been quick to point out what ‘the party of LGBT+ equality’ should deliver. This campaign group – with no fewer than 35 parliamentary patrons – is clear about what it expects from Keir Starmer: it calls on the Labour leader to ‘modernise the process of gender recognition’. That may well be self-ID in all but name.
At the same time, the Tories have challenged the SNP by suggesting that gender recognition will be a reserved matter so there would be no repeat of Nicola Sturgeon’s Gender Recognition Reform Bill fiasco. Clawing back powers from the devolved authorities is a change in direction and in most contexts could be described as a ‘bold move’, perhaps even ‘courageous’. But this is an issue where the Tories feel that the public is on side so it’s an opportunity to be grabbed.
For a party on the back foot like the Tories, why not exploit the opponents’ weaknesses? Sunak may be accused of weaponising gender and using trans people as a political football. But, frankly, that has been going on for the best part of a decade, now. What trans people need as much as everyone else is clear policy that is widely respected and upholds everybody’s rights. The Prime Minister might be scoring political points this week, but we all benefit if his words lead to better laws down the line. Then perhaps politics can move on and return sex to the biology textbooks.
Debbie Hayton is a teacher and journalist.
Her book, Transsexual Apostate – My Journey Back to Reality is published by Forum
* This article was first published by The Spectator on 3 June 2024: Sunak’s gender attack will hurt Labour.
Debbie Hayton 