Joyce activated, issue 49

This week I suggest practical ways to mend captured institutions by identifying statutory and/or financial obligations on their face have nothing to do with gender-identity ideology, but on closer analysis require acknowledging the reality of biological sex.

Joyce activated, issue 49

This week I pick up from last week’s issue, which looked at how mission-driven institutions have been perverted by gender-identity ideology, with the result that they have not merely wandered off course but undergone a 180-degree reversal. I pointed out that this is most dangerous when it comes to regulators, since they set standards and license professionals; when their mission is subverted an entire sector can go over to the dark side. But regulators also offer an opportunity: fix them and you can fix that entire sector, rather than having to painstakingly recapture every individual institution.

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So how to fix institutions? I don’t say it’s easy, but I do have some suggestions. They involve identifying obligations, ideally statutory and/or financial ones, which on their face have nothing to do with gender-identity ideology, but on closer analysis require acknowledging the reality of biological sex.

Take schools. Many in the UK (and elsewhere) have started to allow children, with or without their parents’ say-so or even knowledge, to overwrite their sex as recorded on the school roll with their self-declared gender identity. If you believe in gender ideology, this makes sense: trans boys are boys; trans girls are girls; non-binary children are… erm… valid.

But if you are in England, unfortunately for you, among your statutory obligations is to maintain a register of pupils that consists of specific data in a standardised format. One field is sex; the only options are male and female; and this record must be created by the first institution the school attends seeing the birth certificate and thenceforth by receiving transfer paperwork when the child moves school. (If a child does not have a birth certificate, for example if she or he is a refugee without papers, or an immigrant from a country where births are not always registered, the sex stated by the parent or caregiver is written instead).

In other words, schools that switch to gender self-ID are failing in their statutory obligations. And there are many other sex-relevant statutory duties on English schools, including providing single-sex toilets and changing-rooms. There are also human-rights obligations that engage sex, and schools are explicitly told not to teach “partisan” materials, which nonsense about how sex is a spectrum most assuredly is. But the great thing about the rules about records and facilities is that they predate the trend towards sex-denialism, and are hence really clearly sex-based, making them hard to wriggle out of by deploying linguistic trickery.

Pointing out these statutory obligations to an individual school’s senior leadership team can sometimes be enough to get them back in line—in many cases they will genuinely have thought that switching to self-ID was the right thing to do because they took advice from once-trustworthy organisations like Stonewall that have fallen victim to trans ideology. However, as I found with my younger son’s school, a really determined ideologue in a senior leadership position can simply ignore the law and statutory obligations without any obvious way to force them to comply. I didn’t complain to that school because I was under any illusion that its staff would listen; I complained so I could write that article. And that, in turn, was part of a strategy to get the government to listen—and act.

I’ve been covering politics, one way or another, since 2005, when I started at The Economist. And in the past year, with Sex Matters, I’ve gained a good deal of insight into how policy change happens behind the scenes. There’s a complex ecosystem of “stakeholders”, to use the jargon, including grassroots organisations, formal campaign groups, think-tanks, the media and self-organised groups that have formed spontaneously within the various political parties. Each plays a different role in raising public awareness, shifting the Overton window, normalising policy options and so on.

And every time someone writes an article like mine about how Hills Road was failing in its statutory duties, that article will be shared within and between those groups, commented on both publicly and privately and—in the best case—make its way onto the desk of the relevant minister or occasionally the PM’s advisers. It then becomes grist to the mill of politicking and policymaking. A popular newspaper’s decision to publish it sends a signal about what matters to voters to MPs wondering where to position themselves on this question and how vocal to be. And then, in turn, when politicians do decide to say something—as this week in Prime Minister’s Questions, when MP Andrew Brigden asked Rishi Sunak whether it was appropriate for schools to encourage social transition—that gets reported too, providing further grist, and the mill turns again.

Ultimately, the audience for my article consisted of the education secretary and special advisers and civil servants in the Department for Education. It built on years of campaigning by groups like Transgender Trend and Safe Schools Alliance, which brought the issues to public attention, which in turn forced the DfE to say it would produce guidance on trans issues in schools and—hopefully—will help ensure that the guidance does eventually come out and hits the mark.

This is a far more efficient and effective approach, for all that it is not led or organised by any central authority, than trying to fix things school by school. Even if official guidance isn’t statutory (and in this case it won’t be), it will be a brave school that refuses to follow clear-cut, explicit rules set by the DfE. Doing so would be legally very risky, and what school leaders (and anyone who has statutory duties at the head of duty-bearing organisations) want more than anything is what’s called “legal safe harbour”, basically, the approach that minimises the risk of being sued.

And that brings me on to my second way to reclaim captured regulators: via financial and risk-management functions. If I had any role in the financial governance of any organisation where sex had been replaced in any capacity by gender, I would be asking to see detailed risk assessments and worst-case estimates of any resulting costs. If the organisation did any work with children, I would be asking tough questions about whether the public-liability insurance covered the increased risk of sexual predation and underage pregnancy. I would ask whether the change of policy had been brought to the express attention of the insurers, and whether they had confirmed that they would cover any eventual damages.

Boards of companies, charities and the like have fiduciary duties. If a board member is aware that policy changes create serious new risks and do nothing about it, the personal consequences can be severe. Personally, I’d refuse to remain on the board of an organisation that was knowingly exposing women or children to unnecessary increased risks, even if those risks might not have any financial consequences for the company; it seems others care less about harms to individuals, but might care about personal liability. I would step down and put my reasons in the public domain. And if I was a company treasurer, I would refuse to sign off the books unless I was satisfied that such risks had been avoided or mitigated, and were fully insured.

The great thing about this approach is that you don’t have to tip your hand by revealing your gender-critical beliefs. If someone responds by saying crossly that “trans girls are girls” or calling you a “transphobe”, you can say “my beliefs are not relevant; I am concerned that if a child gets pregnant as a result of this policy, the damages could be huge, and we need to check with our insurers that we’re covered or this could bankrupt us.” Nominally, safeguarding duties are also statutory, and ignoring them can bring down an organisation—but not so quickly or surely as missing public-liability insurance or unfiled tax returns.

I’ve been wondering for some time now when insurers are going to wake up to the increase in liability driven by gender self-ID. I was therefore very pleased to see in a recent edition of Australian journalist Bernard Lane’s Substack, “Gender Clinic News”, that a specialist Australian medical insurer is scaling back coverage for paediatric gender medicine. In an email to doctors, the insurer writes:

“In response to the high risk of claims arising from irreversible treatments provided to those who medically and surgically transition as children and adolescents, [medical indemnity insurer] MDA National is restricting cover for practitioners in private practice…“[From July 1, we] will not cover you or make a payment when the claim against you arises in any way out of your assessment that a patient under the age of 18 years is suitable for gender transition.”

If I worked for an insurance firm, whether or not one that underwrites medical risk, I would be bringing this article to the attention of my senior leadership team and advising, in writing, that my own firm carry out an urgent audit of any unrecognised risks related to gender self-ID. There are plenty of articles out there about legal cases taken by women who have been deplatformed for objecting to trans dogma, or who were flashed by men in supposed female-only spaces. I would suggest my firm investigate the possibility of protecting itself from what is clearly an evolving area of law with large tail-end risks by writing waivers into all policies for any eventual damages relating to self-ID—and then sit back and watch its clients reconsider their own exposure.

Thirdly, I think there are going to have to be a lot more legal cases before sanity is restored. We’re already seeing a flurry relying on the Forstater precedent, which established that gender-critical beliefs are protected under the Equality Act, but by and large these are relatively low-impact. (They are, of course, still very important for the individuals concerned and helpful for educating employers and service-providers to understand that in UK law discriminating against gender-critical individuals is unlawful in precisely the same way as discriminating against, say, Muslims or atheists).

The most useful cases will be those that target organisations with large-scale reach or, ideally, oversight or regulatory functions—or in which the discrimination is wholesale rather than retail. An example of the latter is diversity training that in itself is discriminatory towards people with gender-critical views, as Naomi Cunningham of Legal Feminist and Sex Matters explained in a blogpost in 2021. As harassment goes, it is extremely efficient:

You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet).

And employers are unlikely to be able to come up with a legal justification:

If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind.

When discrimination is wholesale like this, damages are likely to be considerable, since there are many victims. And since much HR training uses external materials or personnel from specialist firms, a judgment that cost an employer a lot of money could reverberate through the whole “equality, diversity and inclusion” training industry, and then ripple back out into all employers. This would be true even if the case never made it to a higher court, and so did not set any legal precedent. After all, who wants to pay for EDI training twice—first in fees, and then in damages?

The other sort of case I dream of is one against a big public-sector employer or a large union, again because the impact is likely to be outsize. The annual conference of the Public and Commercial Services Union, which is the biggest civil-service union, started on May 23rd; among the motions up for debate ones that would throw the union’s weight behind gender self-ID and condemn “transphobia”. If those motions pass, they too could well constitute wholesale discrimination against gender-critical members (unions are covered by the Equality Act). The practical precedent that would be set by a successful challenge to such a discriminatory rule would send shockwaves through other large unions, the civil service and indeed all employers.

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