Legislative Definition of Sex

Kirsten Oswald Excerpts

Monday 12th June 2023 Westminster Hall

[Kirsten Oswald (East Renfrewshire) (SNP)]

It is a pleasure to serve under your chairship, Sir George. I thank the petitioners, the Petitions Committee and the hon. Member for Gower (Tonia Antoniazzi), who opened the debate on the Committee’s behalf. I am grateful to constituents and organisations who have been in touch with me.

I would like to make a couple of points to begin with. First, the tone of the debate has been mixed—that is the best way that I can describe it. Some of the language was not what I would consider measured. The hon. Member for Wallasey (Dame Angela Eagle) characterised some of it as “unedifying”, and that is true. Unfortunately, all too often, the tone of conversation about these issues is unedifying. In my experience, that is a problem. The people who lose out most because of that are not us, although I think it was the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) who pointed out that we will all have braced ourselves before standing up to speak today. The people most affected will be those directly impacted by the issue, but the change that is being sought is not likely to improve their life. As we have probably demonstrated quite effectively today, confusion would be likely to increase, to the detriment of trans people—and, potentially, women.

Members have repeatedly said that they are in favour not of changing the law, but of simply clarifying it, but it is a change that they are looking for. They are entitled to look for that change; I do not have to agree with it, but they are absolutely entitled to look for it. I do not know why that is the narrative. If they want to change the law, they should absolutely say that.

I am a middle-aged feminist woman, and increasingly a crabbit one, because I am fed up with the fact that women all too often still do not have fair treatment, or the rights that we absolutely should have. So let us hear much more about women’s rights. Let us hear about our rights in relation to buffer zones, and our reproductive rights—that is very topical today. Let us hear about our rights at work. Where is that employment Bill, which could have helped women so much? I could go on. Obviously this debate is not in that category, but the thing is that my rights are not diminished by someone else having their rights upheld. What endangers women is predatory and violent men. To be clear, the SNP’s support for trans rights does not conflict with our continued strong commitment to upholding rights and protections for women and girls under the Equality Act.

[Joanna Cherry]

Will my hon. Friend give way?

[Kirsten Oswald]

I am not going to give way to my hon. and learned Friend or anyone else. I have not intervened on anyone and for that reason, though I am grateful to her, I will continue.

I grew up and went to school in the 1980s. As I have said before in this Chamber, I thought that there were no LGBT pupils in my large secondary school. Obviously, I now know that that is absolute nonsense. It turned out that a number of my very close friends were LGBT, but I did not know that. Nobody did, because they did not feel safe to make their identity known because of the horrifically hostile environment at the time, with the section 28 debate and all. My real fear is that the current conversation about trans rights, including this debate—although maybe we should not call it a debate; nobody’s identity should be up for debate—is very similar in tone, and that is really damaging.

We have to be clear that trans people continue to suffer poorer outcomes. That needs to change, and the suggested amendment to the Equality Act would not change it in a positive way. I also point out that the Scottish Government need to be fully and formally consulted on any proposed material changes, including changes to the current definition of sex. Scotland’s Cabinet Secretary for Justice has written to the EHRC to seek clarification on that.

The reality is that recent communication on amending the definition of sex to biological sex represents a shift in direction by the EHRC, and that shift does not appear to have been made on the basis of meaningful evidence or meaningful consultation.

[Joanna Cherry]

Will my hon. Friend give way on that point?

[Kirsten Oswald]

I am not going to give way.

The heat in this debate has appeared only quite recently. The polarisation I see taking hold here resonates with some of the culture war we see in the USA, where a very damaging narrative is taking hold that is imperilling the rights of women and of trans people in a very frightening way.

We have heard that there are a range of practical issues if this is the direction of travel, including confusion and a lack of clarity on basic things such as where you go to the loo. Obviously, people have been going to the loo without any issue for many years. Your appearance might suggest that you should go to the ladies, but what I am hearing today is that maybe you shouldn’t—how do you deal with that? That is actually rather a thorny issue and practically quite challenging for people. Unless you are going to accept huge breaches of people’s privacy, there is a significant unanswered question here.

The hon. Member for Oxford West and Abingdon (Layla Moran) correctly raised the issue of intersex people. It is important to point out that biological sex consists of a wide range of characteristics. In many cases, people do not possess the sex characteristics that are typically associated with their sex. For instance, a large proportion of adult women do not ovulate. I am one of those women. I hear these debates and I do wonder. Of course, we have heard about intersex characteristics that do not neatly align with binary categories.

There is a significant amount of work that we need to do here. We need to consider the work of organisations such as Engender, which is Scotland’s feminist policy and advocacy organisation. It points to evidence indicating that attempts to amend the Equality Act to limit the definition of sex as a protected characteristic to biological sex risk regression in protections for all women, as well as disproportionate and harmful exclusion of trans people. It makes reference to a paper called “On the Basis of Sex”, which was written by Nicole Busby, professor of human rights, equality and justice at the University of Glasgow. It commissioned that work, which clearly concludes that the Equality Act’s use of non-restrictive definitions is a strength and, as we have heard already, a deliberate approach. It recognises that

“discrimination on the grounds of sex often arises in relation to…socially constructed gender roles rather than biological difference”.

Their concern, which I share, is that there is no legal precedent for the definition of biological sex, as my hon. Friend the Member for Aberdeen North (Kirsty Blackman) noted. That means that there is not a way of looking at how we support women’s rights to privacy, for instance. That kind of change could have regressive consequences: it could actually entrench gender stereotypes and biological determinism for women. These are things that the feminist movement has fought long and hard against. Those are the kinds of concerns, along with the utterly shameful disdain of the UK Government for Scottish democracy that was aired recently when they rode roughshod over the cross-party will of the Scottish Parliament on gender recognition. Transgender people should not be expected to be treated as some kind of convenient political football for constitutional wrangling. They should not expect to have their identities weaponised in the culture wars, which are causing so much harm in the USA. Please, let us not have that here.

[Joanna Cherry]

Will my hon. Friend give way?

[Kirsten Oswald]

I am trying to continue speaking despite interruptions from behind me.

We should accept that all of us present may disagree—we probably all have various different views—but let us imagine that we are all here with good will and not trying to do others down. We are here because we are saying what we believe to be the case. We started the debate with Mrs Cummins, who was previously in the Chair, telling us to be moderate, sensitive and respectful in our language, and that is how we should aim to continue.

To conclude, I point out that we are talking about a small group of the most vulnerable people. The hon. Member for Darlington (Peter Gibson) pointed that out very eloquently. They are the very people who should be able to expect their Governments to find ways to make life easier and support their rights. Our new First Minister, Humza Yousaf, set that out very well:

“I am firmly committed to equality for everybody, because your rights are my rights regardless of who you are. My starting point is that I’ve been a minority in this country for my whole life. I have understood that you have to fight for your rights but my rights don’t exist in a vacuum or in isolation. They only exist because other people’s rights exist too.”

All other rights matter. The suggestion that this change would improve our rights is simply not the case.