It’s an extremely peculiar situation, if you come at it cold: neither the Labour leader, nor any of his shadow cabinet, can get through a broadcast interview without being asked who has a penis and who has a vagina. Why, at this moment of both national and international crisis, has the media decided that the most important question for a party that hasn’t been in government for 12 years, is a hypothetical one about genitals?
It’s not really about vaginas, it’s a quest for the “gotcha” moment, the inescapable trap of deliberately twisted logic which merits unpicking. The question stems from the debate around the 2018 government consultation on whether the Gender Recognition Act (GRA) should have been reformed.
Under the 2010 Equality Act, “a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. There is no requirement for them to have had medical supervision or intervention.
But, for those who want their chosen gender on their birth certificate, they have to apply for a gender recognition certificate. The reform would have allowed trans people to self-identify rather than receive a diagnosis of “gender dysphoria” and submit it to a gender recognition panel.
The issue is clearly one of equity. The bureaucratic process involves a lot of medical assessments, which can take years, unless you’re able to pay for them privately. It boils down to “trans rights as long as you’re rich”, much as reproductive rights did pre-1967. Accessing abortions was never a problem for those with money; but if you believed in it as a right, you kept on fighting until everybody had it, and progressive opinion has always been pretty clear on this point.
Labour’s position has not changed since 2019 – it supports both the reform of the GRA and single-sex spaces. This is the next battleground for gender-critical feminists, who would like to see the party drop its support for reform, on the basis that any such move allows for more trans people – generally cast by some as predatory men – to access single sex spaces. When faced with the question of what defines a man or a woman, Labour is not only being implicitly asked to row back on its own policy, but also to backtrack on current legislation, which says that trans people have the protected characteristic of gender reassignment regardless of whether they have undergone medical interventions.
As things stand now, the government has blocked reforms to the GRA and the Equality and Human Rights Commission has provided guidelines clarifying the circumstances under which trans people can be excluded from single-sex spaces. Examples now include female-only fitness classes and community centre toilets for reasons such as religious belief. I can’t even wrap my head around the person who doesn’t want anybody trans in their aerobics class, nor in my years writing a fitness column have I ever seen “female-only” as a spec. This is a hokey, made-up scenario. Those crop up a lot. And let’s not rehash where faith as a caveat to equality meets its hard limit.
The Labour frontbench needs to own its policy on the GRA, and take the fight back to gender-critical feminists – did they expect Labour to resile from a position based on human rights and equality?
Nobody knows all this better than a human rights lawyer, and this can all read like a bespoke trap for Keir Starmer, forcing him to choose between what he knows is right, just and legally defensible, and what he thinks, as per elaborate focus grouping, will play better on Good Morning Britain. In fact, though, it’s a classic wedge issue for the entire party, filleting it effortlessly into left and right to bring it to a point where it cannot stand itself. The Labour right is happy to throw the entire issue under the bus for that elusive quality of “electability”, which only the right is allowed to define, yet which it never seems able to turn into victory.
Wes Streeting, who appears to be running a shadow-shadow operation in preparation for his own leadership bid, told Julia Hartley-Brewer “men have penises, women have vaginas, here ends my biology lesson”, rather than citing the law. This is despite his previous support for trans people. The left, meanwhile, ties itself in knots trying to recognise trans rights without actually fighting for them or finding any passion or joy in being an ally. Anneliese Dodds was so squirrelly, answering a question about what defined a woman, that it was genuinely hard to work out whether she was on anyone’s side.
The person who’s laughing all the way to the ballot box is Boris Johnson, using feminists instrumentally when he doesn’t care about feminism, attacking trans people strategically to harm his opponents (despite a member of his own party coming out as trans last week), when I doubt he cares about the issue at all.
Labour needs to take a stand based on principles of equality with which they are familiar. They could also maybe learn from their history of being wedged – on Brexit, and long before that, on nuclear disarmament – by political enemies who care much less about the issue than they enjoy watching Labour fall apart.
Underneath this manoeuvring is careless cruelty to trans people, who despite being 1% of the population are apparently the issue of the age, and yet whose suffering and exclusion doesn’t feature in the discourse at all. Beneath every confected outrage about trans athletes, trans prisoners and men pretending to be trans in order to lurk in toilets, there is a consistent theme, that trans people are not victims but predators. It’s such a fanciful reversal of reality – in which trans people are beset by horrifying levels of hate crime, homelessness and domestic violence – that the entire debate is starting to sound baffled and stupefied. That’s no excuse for Labour, who should be able to see exactly what course to take.
Zoe Williams is a Guardian columnist
This article was amended on 7 April 2022 to reflect the language of the Equality Act 2010 in order to more accurately set out the legal position. Also an earlier version misnamed the statute as the Equalities Act. This has been corrected.
