The Telegraph, 13th March 2024
Fix the Equality Act to restore sanity to the trans debate (telegraph.co.uk)
J K Rowling has heroically stood up for women. The Government must find the courage to reform the law
What is a woman? This has apparently become one of the most complex questions of our time. Not least for Labour politicians. We’ve borne witness to a litany of positions from His Majesty’s Opposition on this intractable problem. There’s the “Starmer Classic” – namely, that a small percentage of women have a penis. We’ve had the “Cooper Dodge”, where Labour frontbenchers squirm to avoid answering at all. And then the official Labour position, a moment we all waited for: “a woman is a woman”. That clears it up.
The sad truth is that the debate on transgender rights has become so shrill that reasonable people are terrified of speaking out. For describing the basic facts of life has become a heroic and risky endeavour. To utter such seemingly maddening truths as “a woman cannot be a man” or “boys and girls are different” will invariably lead to accusations of transphobia, far-Right extremism, bigotry or worse.
But the tide is turning in the UK. And that has been because of brave women who stood up for common sense. It’s the reason why the gender ideology movement has gained less traction in the UK, compared to the US or Canada. It’s why the Government has agreed to ban the use of puberty blockers for children on the NHS. The figurehead of this advocacy for women has been J K Rowling. To judge by the brickbats and abuse that she has received, you’d be forgiven for thinking she’d committed crimes worthy of lengthy spells behind bars. But she has transcended politics to be a symbol of truth in a world of deception and doublespeak.
Now she has been accused of “misgendering” – or, to translate, referring to a person by their biological sex. For context, India Willoughby is a trans woman. That means, with all respect to India, he is a man. And J K Rowling dared to address him as such. I was pleased that the police decided no crime was committed in her expression of biological fact, but am concerned that, apparently, they did record it as a non-crime hate incident. If true – and if it contained J K Rowling’s personal data – this decision must be reviewed.
Last year, as home secretary, I changed the guidance on non-crime hate incidents to specifically protect the expression of sex realist views. Indeed, the cases of Miller v College of Policing and Forstater v CGD Europe upheld this principle. I made it clear in the guidance that a high threshold was required to warrant the recording of a non-crime hate incident with personal data, the test being whether there is a real risk of significant harm to individuals and/or that there is a real risk a future criminal offence may be committed.
But the reason why there is so much confusion on everything, from which pronoun to use to how to support gender-questioning children in schools, is that the law is unclear. And that is why no amount of guidance, whether on non-crime hate incidents or for schools, will fix the problem. It is why we need to change the Equality Act.
The root problem is that the meaning of “sex” in the Equality Act is currently contested, especially when read with the Gender Recognition Act. Where someone has changed their sex in the eyes of the law by acquiring a Gender Recognition Certificate, which does not necessarily require surgical alteration, they do not suddenly become entitled to all the rights that come with their acquired sex.
But the Equality Act protects both gender reassignment, broadly interpreted, and sex. That’s why when it comes to using single sex spaces, access to sports and the protection of children in schools, there is a level of confusion about where the line is drawn and where a trans woman is, for all intents and purposes, still to be treated as a biological man. That’s why we need to clarify the Equality Act to ensure that sex means biological sex, as proposed by my colleague Liz Truss.
Fundamentally, we cannot legislate for what people may “feel”. It cannot be right that those who self-identify as a different gender must always expect the rest of us to change our speech or behaviour to accommodate their feelings. Otherwise, where does it stop? What’s to prevent me declaring myself a different race, age or nationality, simply based on my feelings?
The logical endpoint of this debate is a breakdown of truth and justice, and it’s why we must support heroines like J K Rowling in this fight. From more than 100 years ago, Millicent Fawcett’s rallying cry of “courage calls to courage everywhere” applies now more than ever.
Too many of us tip-toe around this debate and walk on by. But it is thanks to people like J K Rowling that more of us have found the courage to speak out for women, for safety and for sanity. That is why the Government must show that same courage and support a change in the law.
