Naomi Cunningham: Gwyneth King fights an army of straw (wo)men and wins
In her piece on media coverage of the Scottish government’s proposed gender-recognition reform (1 February 2023), Gwyneth King criticises those who have pointed out that women’s organisations which signed a statement in support of the Scottish government’s policy are recipients of substantial financial support from the Scottish government.
She suggests that “anti-reformers” oppose the Scottish government funding women’s groups, and that they would prefer such groups to close than to be “trans-inclusive”. This is a straw man, in several ways.
These critics do not want women’s organisations to close for lack of funding: they are making the obvious point that public agreement and approbation are less impressive when they come from financial dependents. They are not “anti-reform” per se: they are opposed to specific reforms that they argue will harm women, and would like to see different reforms that would actually support women.
King says they do not accept that gender reassignment is a valid protected characteristic in the Equality Act. This is invention: most campaigners against the Gender Recognition Reform Bill support protections from discrimination on the basis of gender reassignment. What they don’t accept is that those protections mean people with the characteristic of gender reassignment are entitled to be treated as the opposite sex at all times.
She also takes a swipe at campaign group For Women Scotland (FWS) for their (successful) judicial review of the Gender Representation on Public Boards (Scotland) Act. She claims their opposition to the inclusion of “trans women” (male people who identify as women) in a measure designed to increase the number of women on public boards meant that “they would rather cis women [that is, women] lose out than trans women be included”.
That equally misses the point. If public boards are required to include a certain proportion of women, but “women” is taken to include any man who says he is a woman, women certainly will lose out.
Not only will they fail to benefit from a measure intended to increase their number on public boards; those boards will be encouraged to think that the job of including women is done provided they have included some men who call themselves women. As enacted, the law opposed by FWS was calculated not to increase but to reduce female representation. King then turns to the case of Adam Graham, the rapist also known as Isla Bryson, who was remanded for sentencing to a women’s prison before being moved to a men’s prison after public outcry.
King correctly notes that prison services are bound by the Equality Act, but then says this: “Therein, along with the safe space exception to the default rule that trans women should be treated as women, there is also a specific exception that applies to prisons.”
That packs a lot of legal errors into a few words. There is no “safe space” exception in the Equality Act: nowhere in that act does that phrase (or any equivalent) appear. This invention is becoming more widespread. On 31 January Charlie Falconer, a Labour peer and former lord chancellor, also talked repeatedly of “safe spaces” rather than “single-sex spaces” while giving evidence to the Women and Equalities select committee in Westminster.
What does appear in the Equality Act are various exceptions to the default prohibition on sex discrimination and gender-reassignment discrimination that make it lawful, where appropriate, to provide services separately for men and women, or only for one sex.
There is no rule, in the Equality Act or anywhere else, that “trans women” (meaning men with the protected characteristic of gender reassignment, a tiny number of whom have Gender Recognition Certificates deeming their sex to be female for some purposes) must be treated as women.
Equality law permits, but does not compel, male and female prisoners to be accommodated separately. It is government policy, not the Equality Act, that has determined that some men are to be allowed to be housed with women.
It was in 2009 that the first male prisoner who had not undergone genital surgery succeeded in forcing prison authorities to move him to a women’s prison. He had convictions for manslaughter and a terrifying attempted rape (AB v Secretary of State for Justice). The judgment in that case is founded on his Article 8 (privacy and personal autonomy) rights. Although it is a judgment of a deputy High Court judge sitting alone, and seems to have been argued for the Ministry of Justice without reference to the impact on the human rights of the women with whom it was proposed to imprison this dangerous man, it has not been challenged in any subsequent proceedings.
In other words, Adam Graham would hardly have been the first man to commit extreme violence, including sexual violence against women, to go on to gain transfer to a women’s prison. This abuse of women’s human rights predates the Gender Recognition Reform Bill – but that bill would make violations more frequent.
King ends her piece by calling on readers to “go behind what is being said in the media about anything to do with trans people at the moment, and consider whether it is neutral, factual reporting or a manipulation of discourse”.
That is excellent advice.
Naomi Cunningham is a barrister specialising in discrimination law and chair of Sex Matters, a human-rights group campaigning for sex-based rights.