A welcome shift in the transgender debate

Richard Garside
Friday, 25 September 2020

After the drama and toxicity of the transgender debate, yesterday was something of welcome anticlimax.

Speaking in parliament, the Women and Equalities Minister, Liz Truss, explained calmly and patiently why the government had decided against legislating to enable transgender people to change their legal sex by a simple declaration.

Also yesterday, the Department for Education, quietly and without fuss, published updated guidance on the relationships, sex and health curriculum. Teachers, states the updated guidance, "should not suggest to a child that their non-compliance with gender stereotypes means that either their personality or their body is wrong".

Taken together, these developments signal a welcome shift, both in substance and in tone.

In substance, Liz Truss acknowledged that the Equality Act 2010 allows for service providers to restrict access on the basis of sex. Indeed, she singled out women's refuges and prisons in particular as places where this was "an important issue".

Liz Truss does not have ministerial responsibility for the prison system, but her comments are helpful in reaffirming that there is a legal basis for segregating prisons on the basis of sex, rather than by amorphous and subjective notions of gender identity.

This is not currently the approach of the prison service, which runs women's prisons as mixed-sex institutions. While the majority of males who identify as or believe themselves to be women are held in the male estate, a relatively small number are held in women's prisons. Placement in a women's prison is more-or-less automatic for male prisoners who have a gender recognition certificate indicating that their legal sex is female.

This is why moving towards a system that would have allowed individuals to change their legal sex by a mere declaration posed such a potential gatekeeping challenge to the women's prison system. As Dr James Barrett, then President of the British Association of Gender Identity Specialists, told the House of Commons Women and Equalities Committee in 2015:

It has been rather naïvely suggested that nobody would seek to pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact very many reasons why people might pretend this. These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate (to the same prison as a co-defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a [false] belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier, females being generally perceived as low risk in this regard.

I have previously written about the implications of forcing female prisoners to share their spaces with male prisoners. The Centre has also published an official statement. The Prison Service now has an opportunity to continue to develop its approach in a positive direction, mindful of the single-sex protections offered by the Equality Act.

The Department for Education guidance challenging the "wrong body" discourse has been welcomed by many, including the trans-activist organisation Mermaids, and Sally Hines, one of the most prominent gender theorists.

If transgender males who identify as or believe themselves to be women cannot be said to have been "born in the wrong body", it is not unreasonable to ask why the Prison Service treats some transgender prisoners as if they are indeed women, trapped in a male body.

Developing appropriate provision for transgender males in the male estate, rather than expecting female prisoners to share their spaces with prisoners of the opposite sex, would be both more firmly grounded in material realities, and more consistent with the Equality Act.

Much of what I have written above will be dismissed as so much transphobia by a certain type of activist. After a few years of being at the receiving end of such accusations, I view them as what they really are: the secular equivalent of denunciations for heresy.

This is where the tone that Liz Truss adopted yesterday is welcome. There is widespread agreement that transgender people have the right to live their lives without fear of denigration, abuse or worse. There is also a widespread acknowledgement that sex-specific services and women-only spaces are an important principle of service provision worth defending, and one currently under threat.

Those who want to cast aspersions and engage in toxic insults will no doubt continue to do so. The shouters and cancellers will continue to shout and attempt to cancel.

For the rest of us, the shift in substance and tone of the past few days offers an opportunity to develop reasoned, evidenced and emotionally-literate policy and practice, in an admittedly sensitive and challenging area.