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Kemi Badenoch and the legal definition of sex

The presumptive front-runner for the next Conservative leadership contest has been unfairly vilified.

By Hannah Barnes

The Monday morning media round on 3 June was uncharacteristically messy for the Women and Equalities Minister Kemi Badenoch. With her assertiveness and grasp of detail, she is seen by many in the Conservative Party as a consummate public performer, but not so on this occasion. Badenoch’s op-ed in the Times, posted the night before, had been clear enough, setting out the Tories’ plans to clarify that when the Equality Act spoke of “sex” it meant biological sex only. But on air it began to unravel.

First, Badenoch clashed with Sky News’s Kay Burley, saying she did not understand the questions being asked. Next came Times Radio, where Badenoch accused presenter Stig Abell of inviting her on under “false pretences” because he tried to ask her about social care – something not in her departmental brief. And then on the Today programme she failed to hide her irritation as Mishal Husain focused almost entirely on the question of what paperwork would be used to prove someone’s sex. It wasn’t an unreasonable question, and Badenoch should have had an answer ready. But it’s also true that Husain failed to engage with the wider issue. Badenoch branded Husain’s questioning “trivial and unserious” when asked whether Liz Truss’s appearance on a podcast with a man who joked about rape was compatible with her party’s pledge to protect women.

An outpouring of criticism across the media, social and traditional, followed, with the plan to amend the Equality Act branded “toxic”, “divisive”, “starting a culture war”, and Badenoch herself “ghastly”.

Despite being tipped as the party’s next leader, Badenoch isn’t your typical Tory. Born in Wimbledon, south-west London, to parents of Nigerian origin, she spent much of her childhood in Lagos and the US. She has held the safe seat of Saffron Warden since 2017, and the equalities brief since 2020. Even those on the left campaigning for single-sex spaces believe her intentions in this area stem from a conviction about what is right. A meeting with Keira Bell, who transitioned and later regretted it, had a significant impact on her thinking. As one MP ally told the New Statesman’s Rachel Cunliffe in January, “She’s painted as an uber-right-winger, but she’s actually incredibly nuanced.”

The Today performance may have been a car crash, but the Conservatives’ plan to “clarify” the Equality Act has been a live issue for more than a year. Only those who have not been paying attention would think this was a new story – which would appear to be a fair chunk of the media.

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There has been growing uncertainty over the interaction between the 2004 Gender Recognition Act and the 2010 Equality Act. The former allows someone with a medical diagnosis of gender dysphoria to gain a gender recognition certificate (GRC) giving them the right to be treated under the law as the sex they identify as. The latter makes it illegal to discriminate against anyone on the basis of nine protected characteristics: age, disability, religion, race, marital status, being pregnant or on maternity leave, sexual orientation, sex, and gender reassignment. The last of these, rightfully, protects trans people from discrimination. The problem comes when you ask what “sex” means in this context: birth sex or legal sex, as afforded by a GRC?

In 2021 the Office for National Statistics was forced to amend its guidance to transgender people on how to detail their sex in the census, after a women’s rights group complained it allowed people to define their own sex rather than record their legal sex. Most significant was a judgement from the Scottish courts in late 2022, in which Judge Haldane ruled sex was “not limited to biological or birth sex” and included “those in possession of a GRC”. The issue was brought to further prominence by the Holyrood SNP government’s December 2022 attempt to change the law to make it easier for people to change their legally recognised gender – and the UK government’s successful move to block it.

In February 2023, Badenoch wrote to the Equality and Human Rights Commission (EHRC) to ask whether it would recommend an amendment clarifying the Equality Act. Two months later, the chair of the EHRC, Kishwer Falkner, concluded that “if ‘sex’ is defined as biological sex for the purposes of [the Equality Act], this would bring greater legal clarity”.

Doing so would not remove existing protections for trans people: it would, rightly, remain unlawful to discriminate against anyone on the basis of gender reassignment when it came to housing, employment or the provision of goods and services. It also would not stop groups offering trans-inclusive services and spaces. But clarification would strengthen the existing provision in the Equality Act to provide single-sex spaces, such as prisons and rape crisis centres, and allow them to lawfully exclude even those who have a GRC when there is a legitimate reason for doing so. That might include protecting the dignity of biological women who want to access female-only intimate care.

Whatever the subject, an unclear law is a bad law. As the former Scottish Labour leader Johann Lamont said, “The debate is not about changing the Equality Act but clarifying what always was its intent: to defend women against discrimination and abuse and allow women-only spaces and services. And all the noise and dismissive reactions are – probably wilfully – missing the point.”

Various Tory ministers have claimed that a Labour government wouldn’t seek to clarify the law, and reiterated the tired line that Keir Starmer doesn’t know what a woman is. But the reality is that making the Equality Act clearer is a rare point of agreement between the leaderships of the two main parties. When, following the EHRC’s advice, the Conservatives in 2023 indicated they would seek to do just this, the Labour leader backed the move. A spokesperson for Starmer said he had “no quibble” with making clear that sex referred to biological sex only: “Clarification is a good thing.” The shadow justice secretary, Shabana Mahmood, welcomed the EHRC’s advice, telling the Times that when Labour passed the 2010 act, “There was an acceptance that in most scenarios the law would treat trans women exactly the same as women, but there would also be other scenarios in which it’s appropriate for there to be a distinction between what trans women can access and what women can access.”

Badenoch may be seen by the left as an ideologue, waging culture wars for votes. But just because the messenger is on the right, it doesn’t follow that the policy is. Surveys suggest that while support for self-ID has fallen (those aged 18-24 are the most in favour), in all other areas Britons are the most socially liberal they have ever been. In the UK, those who have been most vocal in advocating for single-sex spaces are women on the left, often with trade union and socialist backgrounds. The difficulty for them has been that for many years, the Labour Party – their natural home – did not hold a coherent position on the subject. As the Guardian journalist Susanna Rustin writes in her forthcoming book, Sexed: A History of British Feminism, gender-critical feminists have found themselves in “often uneasy agreement” with the Conservatives on this issue.

Yet HuffPost called the proposals “very controversial”, while the i ran an op-ed arguing the clarification would put trans people in danger. The BBC sought to imply that Badenoch’s remarks showed that the Conservatives were lurching to the right in an attempt to keep socially conservative voters. This is lazy journalism. And it’s inaccurate. Since when was protecting the safety and dignity of women and girls the preserve of the right?

The definition of sex is not, and need not be, a partisan issue. That a right-leaning politician is – on this occasion – the one making the argument for legal clarification should not make that any less the case.  

[See also: The Green Party’s irresponsible childbirth “policy”]

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This article appears in the 05 Jun 2024 issue of the New Statesman, The Left Power List 2024