Joyce activated, issue 40
In which I draw a (possibly strained) analogy between equality law and pre- and post-Copernican astronomy...
A few weeks ago I started to write about how the right place to start to win the sex’n’gender wars is by fixing the law. But the piece morphed as I was writing it into something different: a warning about how getting the law right won’t be enough. I’m actually glad I got diverted, because this week my intended topic has become much more newsworthy.
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Before Christmas Maya Forstater launched a petition calling on Parliament to amend the Equality Act to make clear that the protected characteristic of sex refers to biological sex, not to “sex as amended by a gender-recognition certificate”. At 100,000 signatures, such petitions are considered for parliamentary debate. It was unclear whether this one was going to make that threshold—until J.K. Rowling tweeted her support on March 8th, International Women’s Day. The result was around 15,000 signatures in little more than 24 hours. As I write the total is approaching 103,000, and the petition has been mentioned in a debate in the House of Lords.
If you’re concerned about the erosion of women’s rights in the UK - the right to single sex spaces like domestic violence refuges, rape crisis centres and prisons - sign the Sex Matters petition to make the Equality Act clear.#InternationalWomensDay2023 https://t.co/elvo1IMiRL
— J.K. Rowling (@jk_rowling) March 8, 2023
As I explained in my previous newsletter, equality law in the UK pertaining to sex and gender isn’t actually that bad on its face. It defines “sex” as a protected characteristic, glossed as “male” and “female”, words with established (correct) common-law meanings. It allows for all the sorts of single-sex provision you might want—although it’s overly complicated, and lacks positive obligations on employers and service-providers to offer single-sex spaces, even in situations where most people need them. (Separate regulations, for example building codes and regulations covering business premises and schools, do mandate single-sex toilets, and sometimes also showers and changing facilities.)
But even as it stands the law is being subverted in two ways: by activists spreading lies about what it actually says; and, increasingly, by efforts to redefine the meaning of words.
Every day I come across more examples of the first. This week I was sent notes taken by during a seminar for private-school heads that was run by a lawyer who presents herself as an expert on equality law. Among the utter nonsense that was spouted were claims that “gender identity” is known to have a biological basis in neurochemistry and genetics; that the definition of the protected characteristic of sex in the Equality Act is not based on biology; that girls’ schools that refuse to admit “trans girls” (boys who identify as girls) are committing unlawful discrimination; and that equality law and child safeguarding require schools to seek to persuade girls to allow boys who identify as girls sharing their sleeping quarters on school trips.
I previously shared an article I wrote about my (failed) attempt to get my son’s sixth-form college to correct its transgender policy; since I wrote it I’ve found out that the policy, which was riddled with legal errors, was written with advice from one of the UK’s biggest law firms. Recently the Scottish Legal News, a respected website, has run several articles (here, here and here) by a solicitor that wildly misrepresent equality law; others pointed out the errors (here and here), but it remains extraordinary that the initial articles got written at all.
Before I started this work I would never have believed that this could happen: that a school could turn to a major law firm and receive such flawed advice, or that specialist legal publications would provide a platform for such mistaken accounts of the law.
The second way the law is being subverted is by redefining words while leaving the law facially unchanged. The Haldane judgment in Scotland in December ruled that ever since the Gender Recognition Act (2004), which allows people to change their legally recorded sex for some purposes, the words “male” and “female” in the Equality Act have, in effect, meant “possession of a government-issued piece of paper stating your sex as male or female”. The government’s barrister, intervening on the winning side, argued that words in laws mean whatever the government says they mean, analogising sex with speed limits, which have no independent reality outside the law.
Judges and legal theorists haven’t always been this convinced that laws can change anything and everything by fiat. In 1598 Edward Coke (it’s pronounced cook, in case you care), among the most influential English jurists and a staunch proponent of the primacy of common law and Parliament over royal prerogative, was challenged to say what limits he saw on parliamentary power—in particular whether Parliament could make a man a woman. No, he replied, since turning a man into a woman is simply impossible, in the same way as turning an infant into an adult.
So, the letter of laws isn’t everything. Even so, I think fixing the sex’n’gender mess inevitably involves legal changes. But there’s a wrong way and a right way to go about it—and I very much fear that some of those who understand the problem in principle will make the wrong choice in practice.
Seen from a high altitude (that’s a fancy way of saying I Am Not A Lawyer), here’s how (British) anti-discrimination law works. It says: 1) don’t discriminate on the basis of some characteristic that has, historically, been used to discriminate; 2) except when discriminating is justified.
Discrimination may be justified, in this sense, if being facially neutral in fact disadvantages a protected group. A classic example is a requirement to wear protective headgear while performing certain jobs or activities, such as being a police officer or riding a motorbike, which in effect ruled out Sikh men. Granting Sikh men exceptional licence to keep wearing their turbans is, on its face, racial/religious discrimination, since people who aren’t Sikh aren’t allowed to do it, but it’s discrimination in the service of equality rather than against it.
Other justifications for discrimination recognised in UK law include that different groups have different needs. Here are some examples: only women need cervical-smear tests; a school may run catch-up classes for a particular racial group if that group is falling behind; a sports centre can offer women-only swimming sessions so that local Muslim women attend, or women-only self-defence classes if it thinks some women won’t attend mixed-sex sessions). Discrimination is also permissible if providing the service for everyone would be cost-prohibitive, as it might be, for example, to make a listed building accessible to wheelchair-users.
Mostly this works fine. But two of the protected characteristics recognised in UK law—sex and gender reassignment—rub up against each other like no other pair do, because the protected characteristic of gender reassignment means claiming to be of, or to have some characteristics of, a person of the opposite sex. It’s as if there was a religion that required believers to insist they were members of a different race, or a disability defined by sufferers claiming to be older or younger than their actual age.
To handle this friction, “single-sex exceptions” were written into the Equality Act. They expressly permit employers and service-providers to (lawfully) discriminate on the basis of sex when that is justified, without that opening them to claims of (unlawfully) discriminating on the basis of gender reassignment. A casting agent can lawfully look only at female actors to play a woman; a health service can decide to hire only women to carry out mammograms; and a sports competition can exclude all men—without committing unlawful discrimination against men with the protected characteristic of gender reassignment, even though such men claim to be women.
If it had been up to me I’d have tried to draft it differently—some lawyerly version of “men who identify as women can of course be excluded from jobs, spaces, services and so on that are lawfully reserved for women, because they’re men, even if they claim otherwise, and even if the government has issued them with a piece of paper that lies about their sex”. (Again, I acknowledge that I Am Not A Lawyer, and that equality lawyers I know disagree on the need for and impact of these exceptions.)
But whether or not the drafters of the Equality Act made unforced errors, the Gender Recognition Act (2004) had already tangled up sex and gender reassignment, not just by allowing people to get a certificate lying about their sex but by muddling the language. What to make of a statute that says this?
“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
And that moreover says a gender-recognition certificate changes a person’s sex “for all purposes”?
In its attempts to work around a central falsehood, the Equality Act reminds me of “geocentric” astronomy, in which the Earth was seen as the fixed centre around which celestial objects rotated. Models based on this belief were necessarily complicated, with the sun and other planets traversing an orbit around the Earth called a deferent, and also moving around the deferent in tighter orbits called epicycles. These models were also, as became increasingly evident during the Renaissance, a poor fit for reality. Copernicus attempted to patch them up by adding extra epicycles, which brought them closer to observational data, but not close enough and at the cost of even greater complexity.
The solution hypothesised by Copernicus and adopted by Galileo was to put the sun at the centre of what we now call the solar system. Famously, the Church resisted this shift. Galileo was forced to publicly recant; his private resistance is celebrated in the (probably apocryphal) phrase “eppur si muove” (and yet it [the Earth] moves). With the addition of Kepler’s realisation that the planets’ orbits are elliptical, not circular, astronomers finally had an elegantly simple heliocentric model that needed no empirical tweaking to both fit and explain reality.
Regular readers will know by now that I’m partial to analogising gender issues with ideas from mathematics. Maybe this is fanciful of me, but those who claim that “sex” in the Equality Act means “sex as modified by a gender-recognition certificate” remind me of pre-Copernican astronomers. (Recall that this is a group that includes not just Lady Haldane, but the Equality and Human Rights Commission, an official government watchdog).
First they centre the wrong thing: government-issued pieces of paper rather than biological reality. Then they tweak their model to try to make it fit with reality. Single-sex exceptions are like epicycles: adjustments that tacitly accommodate the fact that some people’s claims about their sex are false, and some people’s pieces of paper record those falsehoods as truths. They are an attempt to line up a law that sees the sexes as paperwork-based categories with an anti-discrimination framework that justifies banning certain forms of sex discrimination and allowing others on arguments that only make sense if you understand the sexes as biological, not administrative categories.
Nothing about equality and anti-discrimination law as they pertain to sex makes sense if sex means “people who possess a government-issued piece of paper that says ‘male’ (alternatively ‘female’)”. This group doesn’t experience any distinctive type of discrimination and doesn’t have distinctive needs that differ from those of the other “sex”. And since these definitions are the basis for another protected characteristic, namely sexual orientation, this becomes about paperwork too. But as I’ve written before, I don’t think there’s anyone in the world whose objects of sexual attraction are delineated by whether a government-issued piece of paper says M or F.
A further similarity between the paperwork-based model of sex and geocentrism is that the more each is tested against reality, the more obviously wrong it is.
In the case of geocentrism, it was better telescopes that led Copernicus first to add further epicycles and then propose heliocentrism. In the case of equality law, the single-sex exceptions are proving increasingly inadequate as transactivists increasingly lobby for gender self-identification. They cover spaces and services (and sports, although the wording is slightly different), but not schools, charities or associations.
The result of interpreting sex as meaning paperwork is therefore that such organisations can be single-sex in name only, with have no legal basis for excluding people of the opposite sex if they have the right paperwork. This is most obvious in lesbian associations, which have either become “trans-inclusive”—admitting heterosexual men who identify as women—or gone underground.
The wrong way to fix this is the one Copernicus tried first: with yet more “epicycles”, that is, with single-sex exceptions for every possible situation where sex matters. The result would be even more complicated than the current law, and the more complicated a law is, the less likely its provisions are to be used. This excellent piece by Fiona McAnena of Fair Play For Women looks at sport, where the Equality Act is clear that males, even those with gender-recognition certificates, can be excluded from female-only competition. And yet, as McAnena explains, some sports’ governing bodies say they are afraid to do so because they think they will be sued. The Equality and Human Rights Commission has recently reiterated that position. But sporting bodies fear that the costs of defending themselves against legal challenges, even baseless ones, could be catastrophic.
The right way is the way Copernicus tried second: to stop trying to tweak models build around the wrong thing. Equality law needs to be recentred on the material reality of biological sex rather than government-issued paperwork. The result, like heliocentrism, will be simpler, more elegant and more coherent. And like epicycles, the single-sex exceptions will become redundant.
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