What sex means in the Equality Act
The Tories’ manifesto pledge meant a lot of media appearances – of varying degrees of balance and fairness
The election campaign continues, and as readers based in the UK will know, the Conservatives have pledged to clarify the meaning of sex in the Equality Act. I and my colleagues did a round of radio and television interviews to talk about this policy, which we have been advocating for the past 18 months.
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What’s at issue is pretty technical: whether holding a gender-recognition certificate (the relevant legislation is the Gender Recognition Act dating from 2004) does or doesn’t change a person’s sex for the purposes of the Equality Act (passed in 2010). The GRA says it changes a person’s sex “for all purposes” – which doesn’t mean what it sounds like it means, because the law then goes straight on to list a bunch of exceptions, and anyway can only mean “for all legal purposes” (it can’t change individuals’ perceptions of each other – or, for that matter, make a person whose body produces sperm start producing eggs, or vice versa). But that really does sound rather like it changes a person’s sex for the Equality Act, which is legislation and was passed after the GRA.
On the other hand, the “sex” parts of the Equality Act are basically the Sex Discrimination Act, which dates from 1975. Nobody, but nobody, back then thought “sex” meant anything except, well, sex. And if you read the Equality Act as meaning “sex as modified by a gender-recognition certificate”, you break a lot of it, in particular comparators for anti-discrimination cases, justification for lawfulness of single-sex spaces, services, schools and associations, and the “public-sector equality duty”, the bit that requires public bodies to consider the impact of policies on the various protected groups, and most definitely was intended to cover the impact on women – meaning actual female people.
This is the sort of legal argument that is going to come up in a case that is due in the Supreme Court later this year, taken by grassroots group For Women Scotland against the Scottish government. It relates to a very specific question about quotas for women on public boards. Such quotas are lawful “positive action”, but are they for actual women or certificated women? Would a man with a GRC saying he’s female count for the purposes of the quota? Would a woman with one saying she’s male not count?
So yes, it’s technical, but it’s undeniable that what the Equality Act means by “sex” is debatable – it’s literally going to be debated in the Supreme Court later this year. It’s not tenable to argue that clarification is unnecessary – and for what it’s worth the lower courts said that the question would be better resolved by Parliament than by judges.
I gave a layperson’s version of what is at issue on Andrew Doyle’s show, Free Speech Nation, at the weekend.
During the week I had a perfectly reasonable and unbiased interview on Sky News, which was really surprising.
Maya also got a proper crack at the topic on Jeremy Vine’s radio show on BBC2 – a real coup (although there was also a trans-identifying man on, and the usual difficulty of keeping on the topic of women’s rights when the conversation includes a man who insists that he is literally female).
Maya Forstater on BBC Radio 2, 3rd June 2024 - Sex Matters
The other interviews we did were less balanced. I thank my lucky stars that Stephen Nolan of BBC Radio Ulster asked my colleagues Maya and Fiona McAnena to come on his show, and not me. They weren’t expecting a monstering, because Nolan was the presenter for an excellent ten-part podcast series on Stonewall that came out in 2021.
BBC Sounds - Nolan Investigates - Available Episodes
But those two interviews, especially Fiona’s, suggest he really didn’t learn anything from the podcast.
It was painful to watch – Nolan’s a big man, and became extraordinarily aggressive when Fiona tried to explain that one reason women need women-only spaces is as protection from male violence. He raised his voice, talked over and generally gave the impression that the red mist had descended. I’m really glad Fiona wasn’t in a studio with him; it would have been actually scary.
I think this link, to the whole episode, is only available within the UK.
Nolan Live - Series 18: 05/06/2024
But Nolan himself tweeted the nastiest bit, calling it “explosive” – that’s one word for it.
Explosive TV as Nolan challenges "male people represent a very significant threat to female people" - Fiona McAnena Director of Campaigns at Sex Matters@SexMattersOrg | #NolanLIVE | @BBCiPlayer pic.twitter.com/RA3EJn6WG1
— Stephen Nolan (@StephenNolan) June 6, 2024
My most unpleasant interview of the week was with another big man, Nick Ferrari, on LBC (a big commercial radio channel). Ferrari had been pretty bad on this subject for years, but had seemed to move a bit in recent months. I’m sure he thinks his current position is a reasonable midway between two extremes: taking all identity claims on faith, and insisting that sex is real and can’t change. (I’ve talked to him before, and that interview stalled when I said that human are mammals, all male and female, and people can’t actually change sex – he insisted that was just my opinion.)
He tried to set this interview up by saying that the Tory proposals weren’t about real trans people, who obviously have the right to be treated as their new sex. Before bringing me on he talked to a transwoman called Joanne Monck, who trains police in EDI and who insists that he is now female because he has a birth certificate saying so.
Ferrari was clearly getting angrier with me as we talked because I wasn’t playing along with this “true trans” narrative, and towards the end he apologised to Monck for having to listen to me, saying “I assume you’ve had the surgery”. I responded by pointing out that surgery is not a condition of getting a gender-recognition certificate, and anyway isn’t something women can ask about when a man is using our spaces – we can’t say “have you been castrated?”
That was clearly the last straw for Ferrari, who cut me off there, saying “I’m grateful for your input” and hanging up. When the show tweeted the segment later, it just used the bit with Monck and cut me entirely. We clipped it all, however, and you can listen here.
In our team conversations since, we’ve been wondering what, if anything, we could have done to make it more likely that our points landed (I don’t think we did badly, but we can always do better).
We concluded that Fiona could usefully have turned Nolan’s aggressive questioning back on him by asking whether he personally would be willing to use women’s toilets or changing rooms, and if not why not. I should have tried to avoid saying the word “castrated” – that’s probably what pushed Ferrari over the edge – though it really irritates me that it’s alright for him to say “had the surgery” and not for me to give any clue as to what we are actually talking about – what surgery, Nick? How, precisely, do you think gender clinicians turn a male body into a female one?
And I think we should all try to avoid saying outright that the transwoman who’s been brought onto the show with us to “balance” our bigoted opinions about women’s rights is a man, or male. We should practise deflecting by saying things like “the general point is that it’s not possible for humans to change sex”, rather than “you’re not a woman, you’re a man.” The latter comes across as mean – and it’s a fact of life that women aren’t forgiven for being mean, still less for being mean to people who are widely understood as “vulnerable”.
As for the “red mist” that seemed to descend on Nolan, is there any way women can avoid triggering the sort of men who are so determined to hear “almost all those who commit violent and sexual crimes against women are men” as “all men are rapists”? A male friend got in touch to say the same conflation comes up in conversations about sport, where people seem to mishear “men are on average bigger, stronger and faster than women” as “all men”. This irritating response is of course so common that it has spawned a couple of hashtags: #NotAllMen and #NAMALT (not all men are like that).
I know I try to caveat the things I say that get this sort of response – saying “on average” and so on. So does Fiona, who is an expert on sports policy and has an awful lot of experience in talking to boneheaded sporting administrators.
I don’t think any amount of caveating or clarifying would have helped with Nolan, however. I got the strong impression that he is well used to using his bulk and loudness to intimidate others, especially women. And anyway, our argument isn’t (just) that we have to keep all men out because some of them are dangerous to us, and we don’t know which ones.
It’s that we have the right to set boundaries that exclude all men because that’s what we need to do for safety, privacy and comfort. That includes the nice ones, the safe ones, the good ones, the ones who wish they weren’t men, the ones who are wearing dresses, the ones whose paperwork says they’re women, the ones who’ve been castrated – yes, all men. Not because they’re definitely dangerous, not even because they might be dangerous, but simply because this space is for women only, and they’re not women.
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Oh well. If you have any ideas about how we could come across better, do drop them in the comments!