Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they found Radical, a campaign for truth and freedom in the gender recognition debate.
We’ve been writing this fortnightly column about sex and gender since March. We’ve covered a range of topics relating to relevant matters of law, philosophy, and public policy, but we’ve been clear from the outset about where we’re coming from:
Of course trans people should be treated just the same as anyone else, all things being equal. But it’s also the case that biological women need societal recognition of their right to certain single-sex spaces. And the denial of the concept of biological truth leads only to an anti-vaxxing hellhole.
We’ve also been clear that we’re writing these columns because people on the centre-right have, too often, been missing from this important contemporary debate. We wanted to share what we’ve learnt and provoke discussion, and felt well placed to do this.
One of us, Victoria, is a party member and activist, and a classic conservative; the other of us, Rebecca, is a former party member and PPC, and a libertarian. Our shared values, and our differences of opinion, mean that, between us, we have a lot in common with most of the ConHome readership, which itself is varied in many ways.
So, we want to use this fortnight’s column to pave the way to search out points of commonality with two Conservative MPs – Nicola Richards, Alicia Kearns, and several other Tory MP co-authors – who wrote a piece here last week.
Maybe you saw it then, or read about it in the papers. Now, the conclusions of their piece, regarding matters of sex and gender, were different from ours: not least in that they support a move to “self-ID”, and we don’t. But it seems clear that their article comes from a place of goodwill, and we’re keen to engage with its writers.
We want to know more about their views, particularly regarding some key issues about which we feel they could’ve been clearer. We’re also keen to know your answers to the questions we’re going to pose to them now:
Are you clear about the content of the Gender Recognition Act?
You note “there are many misconceptions” about proposed reforms to the GRA. Unfortunately, you’ve adopted misconceptions, yourselves. For instance, you refer to a person changing their “gender” on their birth certificate. Yet, despite the confusing language regarding “gender recognition” in the legislation, a GRC doesn’t change the gender noted on a birth certificate (because gender isn’t recorded there). Rather, it changes someone’s sex, for legal purposes – to align it with the gender with which they identify.
Your confusion is understandable, in some ways: the wording of the relevant section of the GRA uses “sex” and “gender” interchangeably, and doesn’t define either. But it’s important that lawmakers – and particularly those agitating for profound change – are clear and specific, rather than helping to spread misinformation. Sadly, this is not the only example of misinformation we noted in your piece.
Do you accept that the distinction between sex and gender is an important one?
We believe it’s crucial: that “sex” relates to matters of biology (whether someone is a member of the female sex set, or the male sex set), and that “gender” is a matter of social convention (how someone sees themself in relation to stereotypical societal norms regarding the two sex sets).
Moreover, we believe this distinction reflects why it’s neither illiberal nor hateful to oppose self-ID. People should be free to behave and present themselves in accordance with whichever (unharmful) norms they prefer, but there are good reasons to avoid pretending that sex-set membership is a matter of personal choice or feelings.
There’s no law here against exercising “gender expression” – which is a private matter for individuals – and it would be profoundly illiberal to instate one. Indeed, there’s significant legal protection under the Equality Act and criminal law for anyone identifying as a member of the opposite sex.
Sex-set membership itself, however, is highly relevant to important matters of public concern, including those as basic and obvious as the data collection required to underpin medical-resource allocation.
We strongly believe, therefore, that whilst goverments should not be concerned with how people present themselves, healthcare concerns provide just one clear reason why the state must remain interested in, and objective about, matters of sex.
Accuracy and clarity is vital, here, and should be unobscured by personal impressions relating to sex-set stereotypes about matters such as as dress sense.
Do you believe that trans people should have access to single-sex services and spaces intended for the opposite sex, including refuges and prison wings?
We were concerned by your claim that: “Trans people can already use, and have always been able to use, services matching their gender, regardless of whether they have the certificate. Services such as Domestic Violence Refuges have always been able to exclude a trans person in certain circumstances, if it is proportionate and regardless of whether they have a GRC. This is covered by the Equalities Act”.
Again, this is complicated, and the legislation is not clear, but the grounds on which trans people can be excluded from single-sex spaces under the Equality Act are actually general and wide-ranging.
Activist groups, such as Stonewall, like to pretend this isn’t the case, and public bodies, such as the EHRC, which should know better, have issued misleading guidance (currently subject to legal challenge) that tries to limit this to “exceptional” or “limited” circumstances.
But do you really believe that, in 2010, Parliament intended that the very wide protected characteristic of gender reassignment – “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” – generally entitled men in that position to use women’s changing rooms and refuges?
Rather, what is clear from the act, is that it was intended for people with this protected characteristic to be protected from discrimination (such as in the workplace), not that they were to be entitled to be treated as a member of the opposite sex.
Moreover, you claim that “we are the party that ensures people have the freedom to live their lives as they wish”. Now, this is a contestable and partial account of Conservative Party philosophy.
But, putting that aside, aren’t you concerned by the idea of the Government violating women’s rights to organise themselves, and to consent to whom it is they share private spaces with? Or the ability of businesses and charities to provide services that respect and protect women’s interests and preferences?
Do you believe that doctors should be allowed to perform non-reversible medical interventions on under-16s, in order to help them physicalise their gender expression?
We believe that adults should be free to seek medical intervention to make their bodies resemble the opposite sex. We also believe, however, that there’s no justification for prescribing puberty blockers (which the NHS no longer states to be reversible) or hormome therapies to children.
Indeed, it’s clear that these interventions are, like FGM, a form of child abuse, and we are keen to share with you our full findings on this topic as a matter of urgency.
Do you believe in free debate about these matters?
We hope you’ll agree that our questions are neither inherently hateful nor phobic. We certainly agree with you that improving mental health services for trans people is important, and that fighting against hateful prejudice of all kinds is both good and necessary.
We also hope you agree with us, however, that people should be able to discuss their views openly about these matters, and that the serious professional consequences and personal abuse that too many – from JK Rowling, downwards – have faced for doing so, are worrying and wrong.