Gender Recognition Act

Joanna Cherry Excerpts

Monday 21st February 2022 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Gentleman agree that MPs are afraid to engage in this debate because, if they do so, as I have, they receive death threats and, in my case, a threat of corrective rape from a member of my own party?

[Elliot Colburn]

I completely agree with the hon. and learned Lady. We have failed to make a genuine space to express concerns and come to an understanding with one another, and that has left a vacuum, because, in that space, where the few people making their voices heard want to pull us into one of two very extreme positions, we are left with only one of two options if we want to engage with this debate. It seems we must agree that to be trans is not right or even real and that trans people are inherently dangerous and need a cure rather than support, or, on the other side, we must use trans people as an example of why the entire western liberal system is wrong, and agree that no one can be truly equal until the very foundations of what we understand about society are broken down. The failure to have a real discussion has consequences for us all. We now have a situation where people fear speaking up, and they fear to ask questions in case they get attacked or targeted. There are, of course, strongly held views on both sides, but to shut down discussion and to say that everyone must agree with one’s own worldview, or else, is damaging to society and poisons the debate.

One of the most common things I hear from colleagues in this place—and I am sure Members will agree—is that they just do not know enough about the issue. They have not given much thought to reforming the Gender Recognition Act 2004 before, and, as far as they know, they have never met a trans person. That is completely fine, but it therefore falls to us, when we bring these matters to a national platform, to allow space for discussion to happen, so that we can explore and ask questions.

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[Elliot Colburn]

The hon. Member has second-guessed what I am about to move on to. I truly believe that there is a way for the House to come together on this issue. As a member of the Women and Equalities Committee, which conducted a very recent inquiry into reform of the GRA, I was struck by how much agreement there was on both sides of the debate on many of the practical issues this petition is calling for. There was also repetition of what the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) said, specifically on the issue of the application process for the GRC. After all, that is what the petition is all about. Much of the discussion has centred around access to such things as single-sex spaces, but those are not catered for in the GRA or included in the scope of this petition; they are instead governed by the Equality Act 2010, which sets out provisions around single-sex spaces. It is right that we make space for that discussion to happen, because part of the reason that the debate has become so toxic is the confusion around the application of the Equality Act and its relationship with the GRA.

[Joanna Cherry]

May I just disagree with the hon. Member on the legal impact of the single-sex provisions in the Equality Act? There is a respectable body of opinion that there will be an impact on the single-sex provisions in the Equality Act, and we are waiting for guidance to come out from the Equality and Human Rights Commission. Does he agree that that guidance is much needed and will bring some clarity to the debate?

[Elliot Colburn]

I agree with the hon. and learned Lady on the point of guidance, and I will come on that point next. It is the failure of successive Governments since 2004 and 2010 to produce any guidance about the relationship between the GRA, the Equality Act and the exemptions provided for that has led to a disjointed application of those exemptions in much of public life. There are those who use it to exclude everyone, those who use it to exclude no one and a large majority in the middle who simply do not know what to do, because there is no guidance from the centre as to what best practice looks like.

I therefore urge the Government to look again at the recommendation of the Women and Equalities Committee to produce that guidance and to convene an advisory panel of those on both sides of the debate to look at what that guidance could look like and to bring that guidance before the House so that we can debate and discuss it.

I want to focus specifically on the application process for a gender recognition certificate, as catered for within the petition. In the Select Committee inquiry, we received evidence from those in favour of further reform and those who were against it, but what struck me was how much agreement there was between the two sides on the application process. Indeed, the three big asks for reform of the GRC application process were more or less welcomed universally. I strongly hope that the Government will have a chance to look at those in a bit more detail.

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[Miriam Cates]

I do not accept that pausing puberty has no repercussions, but it is also the case that 98% of those who are prescribed puberty blockers go on to cross-sex hormones. That is the reality of what is happening at the moment, with a 5,000% increase in the number of girls referred—

[Joanna Cherry]

The hon. Lady will be aware that Dr Hilary Cass has been tasked by the UK Government with looking at the reasons why there has been such a huge increase in the number of people, particularly young girls, seeking puberty blockers and surgical treatment. Does she agree that we would be wise to wait for the outcomes of that review before taking a final view on whether we should support self-ID?

[Sir George Howarth (in the Chair)]

Order. Before the hon. Lady resumes her speech, let me say that of course anyone is entitled to make an intervention and the speaker is entitled to take them. I would just warn those who are on the list, however, that their chances of being called will be reduced by the amount of time spent on interventions. I am not trying to dissuade anyone from intervening, but they need to realise that it may jeopardise their own chances of making the speeches that they came prepared to make.

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[Joanna Cherry (Edinburgh South West) (SNP)]

I refer to my entry in the Register of Members’ Financial Interests, where I am listed as a member of the advisory group of the not-for-profit organisation Sex Matters. I am also a supporter of the LGB Alliance, and proud to be so.

The hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) says that he is a massive gay. Well, I am a massive lesbian—rather more massive than I was in my younger years. I want to challenge everyone who has said in the debate that they want a respectful debate on reform of the GRA. I want to challenge them to live up to their words and listen to the concerns that are held by many women and same-sex-attracted people about the dangers of conflating sex with gender. Like them, I share the view that the introduction of self-identification of sex would negatively impact on existing provisions under the Equality Act. That view is valid and well-founded and has been supported by the recent intervention of the Equality and Human Rights Commission. Their concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group who have demonstrated their commitment and ability to live in their acquired gender to a much wider group who identify as the opposite gender at a given point. It is not a modest reform; it is a reform with potential consequences, including those relating to the collection and use of data, to participation and drug testing in competitive sport, to measures to address discrimination barriers facing women and to practices within the criminal justice system.

Reform of the Gender Recognition Act is proposed in Scotland and supported by my party. Last year, our manifesto for the Scottish election stated that

“we will work with trans people, women, equality groups, legal and human rights experts to identify the best and most effective way to improve and simplify the process by which a trans person can obtain legal recognition, so that the trauma associated with that process is reduced.”

Our manifesto also stated:

“We will ensure that these changes do not affect the rights or protections that women currently have under the Equality Act.”

I was content to support that policy, which did not commit the SNP to a policy of self-ID. What I have to say today is in line with my party’s promise to work with women, equality groups and legal and human rights experts and to ensure that reforms to the GRA do not affect the rights or protections that women currently have under the Equality Act.

Under the Equality Act, there are a number of protected characteristics, including sex, sexual orientation and belief. We now know, thanks to the employment appeal tribunal, that belief includes gender critical beliefs such as I hold. The Equality Act also protects people who are at any stage of a personal journey of transition or, indeed, de-transition. So widely accepted are those protected characteristics that when my party was trying to win the independence referendum in Scotland in 2014, our current First Minister, then Deputy First Minister, produced a draft constitution for an independent Scotland that would have enshrined those personal characteristics in the fundamental law of an independent Scotland, alongside the human rights protected by the European Court of Human Rights.

I just want to correct something that the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) said. There are laws about who can use which toilet, and women should not be expected to share their intimate spaces with men. Under the Equality Act, security staff, school supervisors and so on are allowed to set and enforce single-sex rules. The Equality Act exceptions allow that. It is not a matter of criminal law; it is a matter of civil law. It is important to be clear about these things, because if we lose clarity over what the words “male” and “female” mean, it will make it more difficult to set and enforce clear and simple rules for female-only services and women’s sports.

[Sir Christopher Chope in the Chair]

Some people have been very critical of the Equality and Human Rights Commission for seeming to have modified its position on self-identification for trans people and reform of the Gender Recognition Act, but Baroness Falkner has been very clear that it has done so because new evidence about the tension between trans and women’s rights has emerged. I remind those who have sought to impugn the Equality and Human Rights Commission and Baroness Falkner that her appointment was unanimously approved by the Women and Equalities Committee and the Joint Committee on Human Rights after an evidential hearing in this Parliament.

There is ample evidence that the concerns of the Equality and Human Rights Commission are well founded. Only last week in Scotland, we had two major legal decisions seemingly in conflict about the meaning of sex in law. Fortunately, because of the appellate system, we know that the appellate court’s decision will take precedence, and the appellate court in Scotland was very clear that as our law stands under the Equality Act, sex is not interchangeable with gender. There is a protected characteristic of sex, but not one of gender. There is a protected characteristic of gender reassignment, but the appeal court in Scotland was very clear that sex means male or female in law, based on biological sex. That is the highest interpretation of the Equality Act in our law at present. The word “women” in the Equality Act does not include males who self-identify as women.

To find out what the general populace thinks about self-ID, we can look at some recent polling. We have had two big opinion polls in Scotland in the past month, and also a BBC survey, which have shown that while the majority of Scots support equal rights for trans people—as, for the avoidance of doubt, do I—they are unhappy about the implications of a system of self-ID of sex without a gatekeeper. That is not because it will discriminate against trans people, but because it opens up self-identification of sex to a much wider group than just trans people—to anyone. Many of the groups, such as the LGB Alliance, which has tried to promote a respectful dialogue around such matters, have not had the sort of reception that the hon. Member for Carshalton and Wallington (Elliot Colburn) has suggested they should. They have been vilified, sometimes by Members of this House. That is not right.

We need to have a respectful debate. By all means, let us reform the 2004 Act, but let us do it in a way that respects the protected characteristics that are enshrined in our Equality Act and takes into account the legitimate concerns of many women and same-sex-attracted people.