Legislative Definition of Sex

Debate between Joanna Cherry and Andrew Lewer

Monday 12th June 2023 Westminster Hall

[Andrew Lewer]

I will follow the example of the hon. Lady’s colleague, the hon. Member for Wallasey (Dame Angela Eagle), and not give way.

I also want to talk about the consequences when there is a lack of clarity and about what happens when our laws mix up material, concrete, physical realities with words and claims about identity. The reason I want to do that is because the consequences can be horrific. When legislators make a mistake, it is ordinary people who suffer. Our laws have to be clear. In situations where sex matters, it is sex that matters.

People can identify however they like, so long as claims about their identity do not injure other people. But injuring other people is what is happening now, because our laws have drifted away from reality and in the process have got muddled. It is well past time to return to clarity and reality, and doing that means clarifying that when the Equality Act says “sex”, it really means sex. We are at a juncture where we have to draw a line in the sand of competing claims.

I ask my honourable colleagues to think of a stark but perfectly commonplace example of a situation where sex matters—that of a woman who is having a gynaecological procedure. Perhaps she is having a cervical smear test, or she needs an hysteroscopy, in which a camera is passed through her vagina and cervix into her uterus. For such procedures, she must take her clothes off from the waist down and be touched intimately. Many, many women are unwilling to go through such procedures except with female health workers. Some women have specific reasons; they are survivors of sexual assaults, or their religion requires them to avoid intimate contact with any man except their husband. Others are simply setting their own boundaries on the basis of what is comfortable for them, and their feelings about privacy and dignity are perfectly normal and a sound basis for them to grant or withhold consent. Here is the stark question in clear language: is a man who identifies as a woman a satisfactory person to provide care to a female patient who has stated that she is willing to undergo such a procedure only at the hands of another woman?

Here is what the NHS Confederation said in guidance sent around the country last week: despite the express wishes of the patient, that man is a suitable person to provide care to that woman. His feelings about his identity override the material reality of intimate contact with her body. They override her privacy, her dignity, her boundaries and her consent, and if she complains, she is transphobic and may be asked to leave the hospital or surgery. If her relatives speak up for her, they may be removed. All of that is dressed up in the language of gender identity. The patient has no rights to know the health worker’s gender identity. It is not the identity of this man, however, that the woman is concerned about; it is his sex.

The NHS Confederation is not an outlier. The British Medical Association, which regulates doctors, says that patients have no rights to be told a healthcare worker’s assigned sex at birth. However, sex is not assigned at birth: sex is observed at birth, as determined by conception. Moreover, if a patient has asked for a carer of the same sex as them, according to the BMA it is the comfort of the staff member that should be prioritised.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Andrew Lewer]

No—yes, sorry.

[Joanna Cherry]

Does the hon. Member agree that the guidance he is reading out is simply wrong in law, and that to force a woman to accept a male-bodied person to carry out her intimate care is a breach not just of the Equality Act but of that woman’s rights under articles 8 and 3 of the Human Rights Act 1998?

[Andrew Lewer]

That is exactly right, and it is why this clarity is needed. Here is another quote from BMA guidance:

“A patient does not have a right to know if a healthcare worker has a gender different to the sex they were assigned at birth.”

In other words, the patient has no right to know whether the person treating them is the same sex as them. That is heartless beyond words. We are talking about a woman who may be worrying about serious illness and is feeling exposed and vulnerable. Professional bodies are instructing healthcare providers to gaslight her. They are saying that it is perfectly fine for a man to touch her unclothed private parts when she has refused that, because of how he identifies. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, it is more than heartless, it is illegal. If a man provides such care to a woman who says that she is only willing to receive it from another woman, it is a sexual assault.

Have we reached the point where medical associations are instructing care providers to sexually assault women in the name of inclusion? That is why it is essential that the meaning of sex in the Equality Act is made much clearer, in order to end this and save lives.