Policy and strategy discussions
15th July 2020
NEXT MEETING: 22nd July IF there is a Government announcement
ZOOM LINK: https://us02web.zoom.us/j/4247888422
OTHERWISE: Wednesday 2nd September 2020 8pm
This document is a mixture of some strategy proposals made by one group member and a summary of action agreed at the meeting on 15th July.
The strategy proposals are presented as a starting point; we are still at the beginning of this process so all ideas are welcome.
One key focus/purpose of this group is to have discussions as openly and publicly as possible; to reclaim discussion of this area of law as a natural and necessary part of a mature secular democracy.
The Gender Critic website: the new home for GRARG
How can we ensure The Gender Critic website becomes a trusted resource for the public and press to come to, especially if we can bring together legal views? To be taken seriously and establish a ‘go to’ reputation, the material published on the website must be legally sound. So the GRARG and website runners need to work out some form of quality assurance. We want to be as open as possible. But when we publish online, we should be clear to distinguish between unfiltered group discussions and our considered positions.
ACTION AGREED: SP will continue to add to site and resources sections; all suggestions for more content/amended content welcome.
GRARG members encouraged to sign up for discussion on the site.
Planning strategically for GRARG’s activities
GRA and EQA reform is a big subject so we need to be strategic in deciding what output is worth our spending time on and how we most efficiently achieve that.
We also need to make sure that we both make best use of existing resources from sister groups (with permission) and are not unwittingly ‘doubling up’ effort by working on the same things in parallel with sister groups. So we need to make sure we stay networked with sister groups and check in with each other.
We need specialist policy makers and lawyers to be part of our process, as well as subject experts and people with lived experiences of the current problems. We’ll need help from expert equality/discrimination/ employment lawyers.
We should not start with trying to draft a Bill. Drafting a Bill would take a long time and text which amends existing legislation is not in itself not a helpful document that the public could understand and discuss. Rather, we want our policy goals to be the focus of attention and discussion.
PROPOSALS FOR TWO PROJECTS FOR GRARG
We think it would be most worthwhile for the GRARG to work concurrently on two projects.
Project 1: A project to produce definitive guidance on how the present EQA should be applied in order to ensure single sex exceptions for women and girls
We think producing a definitive guidance on how the present EQA (Equality Act 2010) should be correctly applied would be the quickest win for us as a group, and could have the most immediate practical impact in actually improving daily life for service providers and users.
So the guidance would be a staging post of clarification of existing rights to be used on our way to strengthening female sex-based rights.
Plus, a definitive guidance could be used by women’s rights activists to draw attention to who is not applying the law correctly and why; which in turn would help to further expose that certain organisations and lobby groups have been giving inaccurate guidance.
NB. We must first just check whether this project has been already or is underway
ACTION AGREED: None yet – this needs urgent investigation so that we do not duplicate work already done
Project 2: A project to produce a policy paper detailing: (a) what is wrong with how the GRA and EQA work presently and how they should be amended to ensure better protections for women and girls, and (b) any changes we could make to UK law which would improve life for transgender people in the UK without negatively affecting other protected groups.
Work on the policy paper could be started concurrently with producing the definitive guidance above, as the groundwork for the two projects is similar and would support each project. But writing a policy paper would be a bigger project.
Even if we do decide to work towards drafting a Bill ourselves, it is necessary to write a policy paper as both a precursor to drafting a Bill and a ‘lay person’s guide’ which would sit alongside the Bill explaining what the Bill intends to achieve.
The policy paper would detail what policy goals we want to achieve and why it is necessary to change the legislation to achieve these purposes. This is actually a much more important task than writing the Bill text itself, as Bill drafters don’t know what to write until the policy goals are completely clear.
Our starting point must be a policy paper that sets out step by step what is not working and why. Ie, what problems are already known or are at risk, BOTH in the law itself AND how the law is being applied. And our policy paper should give evidence and examples of all of this.
The policy paper would need to be written and checked by relevant experts: people working in the areas affected (eg, VAWG refuges), people whose lives have already been impacted, lawyers, data analysts, etc.
The document would need to take one by one all each real-life problem and explain:
(a) what each problem is, with evidence, and (b) how we would fix the problem, with evidence.
The good news is that so many pieces of work by many different people have been done over the past few years, which may already cover the whole scope of the field. We could start by drawing up a list of the problem areas and split into a working group for each area. Each group would begin work by surveying and collating all existing work and evidence, and identify any gaps in research or analysis and whether they need plugging for our purposes. We might not need to do any original research.
Before we do anything else, the group must understand how the law works, including how GRA and EQA interact.
This must be the foundation of any work to be done by the group, as the law is often misreported, even in good faith. It’s a complicated area of law.
Happily there are already a lot of good resources written by legal specialists. The GRARG is collecting a list of resources on the website, and group members should suggest resources they know of.
ACTION AGREED: Creation of ‘sub groups’ to work in more privacy to encourage collaboration, particularly for those group members who need to be more careful about privacy. Those sub groups to report back in September.
Identified so far – Police/Criminal Justice; Political contacts
What should be our policy goals?
Policy goals for ensuring sex-based rights and stronger protections for women and girls
We must argue that legislation (EQA/GRA) should be amended to make ‘sex’ clearly defined.
We should consider whether we can get rid of the concept and term ‘gender’ from legislation, because ‘gender’ is virtually indefinable and it is totally mutable. But if this is not possible, we need also to clearly define ‘gender’ for the purposes of the legislation and make sure it matches across everywhere gender is referred to in UK law.
It may be that we should focus primarily on amending the EQA. Our focus should be on strengthening female sex-based rights, not just ‘clarifying’ them. Because it’s clear that the EQA has not been good enough to secure our rights, so it needs to be stronger.
We should argue that it is necessary to turn around the current EQA position, ie reverse the default position. Now it is unlawful to discriminate on grounds of sex except in certain limited circumstances, and the onus is on service providers to prove that they need to provide single-sex services. Instead, the starting position in law should be that service providers must provide single-sex services for women and girls for x, y, z cases. Possibly there could be some limited exceptions allowing service providers to not be single-sex, but the onus would be on the providers to prove why they should not be single-sex, rather than the other way around, and to provide serious safeguards. So overall, single-sex would be the norm and the right of women and girls for single-sex provision would not be qualified.
We should definitely find a way to add to law specific protections for children and youth (minors). Some ideas:
-(1) make it unlawful for the medical and counselling professions to have a practice of ‘affirming’ a feeling of being transgender and instead require them to assess a minor’s whole mental health;
-(2) make it unlawful to prescribe drugs or surgery for minors;
-(3) make special service provision youth aged 18 to 25, in recognition that although they are adults in law, they are vulnerable and their brains, bodies and social intelligence are still developing; and
-(4) make laws to protect educational institutions from lobbying against sex-based rights and gay/lesbian/bisexual rights – eg, the present trend for advice and training for schools and universities on ‘gender identity’ from political groups and ‘charities’.
Ideas for policy goals for improving the lives of transgender people in the UK, without endangering sex-based rights or other protected groups’ rights
We could consider the law on birth certificate privacy for people who have GRCs, in regards to privacy required by ECHR law on Article 8 (the Goodwin judgment). For example, how could it be enabled that birth sex need only be disclosed when it is really necessary for the person with the GRC or for other people?
We should consider whether we can do anything to strengthen protections for transgender people from victimisation, harassment and general discrimination, especially in the workplace. We think the EQA is already very strong on this, but also perhaps it’s not clear enough who can come within the protected characteristic of ‘gender reassignment’. Early days thinking.
We could argue for a legal guarantee of free, comprehensive counselling and support for any child or adult with symptoms of gender dysphoria or body dysmorphia, and that the counselling must be from a neutral point of view rather than affirming or not affirming whether people feel they are transgender.
We can consider whether we could improve the lives of people who don’t conform to sex-role stereotypes by strengthening sex discrimination legislation or guidance. Eg, protecting both women’s and men’s right to wear what they want in the workplace. We think there are real possibilities for taking a feminist approach by protecting women’s and men’s rights to free expression in their appearance or behaviour, without any reference to whether it is necessary to identify as the opposite sex in order to behave in atypical ways.
We can perhaps explore whether the law is working to protect transgender people against acts of physical violence. However, this would be a matter for the criminal law and mostly outside the scope of considering GRA/EQA reform
ACTION AGREED: SP to produce first draft of ‘standard letter’ to MPS – setting out precis of concerns and asking MP to clarify their position. Suggestion that GRARG members also fix face to face meetings with MPS.
A note on ‘belief’, for discussion
We should not describe ourselves as having ‘beliefs’, for example a ‘belief’ in biology or a ‘belief’ that gender is a social construct. Rather, we should describe ourselves as taking positions based on proven material and social science. The reality is that we do not ‘believe’ that there are two biological sexes; rather, it is simply a fact that there are two biological sexes. On the other hand, we can describe trans ideology as being about belief, akin to religious belief. We can consider that people are entitled to hold a belief in trans ideology or any other belief (as required by UK law) but that beliefs should not be given equal weight to facts as evidence, or be forced onto other people. What we are not is one set of ‘believers’ against another and we should avoid any attempts to position us as such.