Legal Recognition of Non-binary Gender Identities

Miriam Cates Excerpts

Monday 23rd May 2022 Westminster Hall

[Miriam Cates (Penistone and Stocksbridge) (Con)]

“Non-binary” is a term for gender identities that are not solely male or female—identities that are outside the gender binary. So what do we mean by gender? The word “gender” used to be interchangeable with biological sex, and biological sex is indeed binary. Humans, like all mammals, have either male or female sex chromosomes in every cell. We are male or female; that is immutable and scientifically indisputable.

So what is gender identity? Gender is sometimes used as a descriptor of how masculine or feminine something is perceived to be, such as a particular character trait, choice of clothing or type of behaviour. We all understand what feminine or masculine clothes look like, though of course the stereotypes change between cultures and over time. Certain preferences are considered to be more masculine or feminine, and certain characteristics are more common in males or females. We all know both males and females who possess these traits. Given how important one’s sex is to one’s biology and psychology, it would be very odd indeed if our sex did not have some influence over our choices and behaviour.

What is the evidence for the idea that someone could have a gender identity that is different from their biological sex; the idea that someone can be male but feel female or, in the case of non-binary people, be either male or female but feel neither or both? It is absolutely normal for an individual to feel that they do not fit in with cultural or stereotypical ideas of how boys or girls and men or women should behave. How many of us in this room feel like we fit into a purely male, female or any other stereotype? No one completely fits neatly into a mould. Some people feel that they do not fit at all. Of course it is possible for someone to feel that they identify in some ways more with people of the opposite sex than their own, or not particularly with either. This is a normal part of the human experience.

While there are infinite different ways to express masculinity and femininity, it does not follow—logically or scientifically—that one’s soul or self has a gender, or that that gender is distinct from one’s biological sex. There is no observable marker for what it feels like to be female or male, because no one knows what it feels like to be anyone other than themselves. If we see a person’s likes or dislikes and preferences or behaviours only through the lens of gender, then we have lost sight of a concept far more important and evidence-based: the variety of human personality.

Through the wonder of DNA and the infinite permutations of upbringing and environment, every one of us has a unique personality, but those who see everything through the lens of gender are watching humanity in black and white, rather than through the glorious technicolour of the richness and variety of human nature. In trying to squeeze all that human diversity into the box of gender, there is also a danger of losing a grip on material reality.

Some people struggle intensely with gender distress, and some from a very early age. They should be treated with the utmost compassion and care. They should receive all the care, support and treatment they require. Adults in this country should, of course, be free to dress and present in any way without fear or discrimination, and they should be fully accepted. However, in this country our law is based on facts, evidence and material reality; it should not be used to embed contested and unevidenced ideologies that can sometimes be harmful. I will explain why I do believe this ideology is so harmful.

Children are now being taught in schools that there are more than two genders and that they can change their gender. They are being told by trusted adults that if they are gender non-confirming—itself a regressive concept that we threw out in the 1980s—then that might mean they were born in the wrong body. In one classroom, children are being taught the facts of sexual reproduction, and in another that women can have penises and men can have periods. They are being told to suppress the evidence before their own eyes by saying that a boy is now a girl and a girl is now a boy—or neither boy nor girl.

Vulnerable children, particularly those who are autistic, same-sex attracted or have mental health conditions, latch on to gender theory as an explanation for why they might be different or why they do not fit in. These children then look up the terms “trans” and “non-binary” online and are drawn in by adults they do not know on Discord and TikTok, who tell them how to obtain and inject cross-sex hormones. They follow YouTube stars who glorify surgical transition. Schools jump into transitioning children, changing their names and their pronouns and celebrating their new gender status publicly, sometimes without informing their parents, which cuts them off from the people who care about them most.

There has been a fifteenfold increase in the number of children referred to gender clinics, and an exponential rise in the number of trans and non-binary-identified children in school. Let us remember the ultimate consequences of transition: infertility and loss of sexual function for life; and for girls, permanent facial hair, a deep voice, male pattern baldness and lifelong health problems. This is a failure of safeguarding. It is not biology; it is ideology, and in many cases it is indoctrination.

It is not open-minded or compassionate to teach a child that they may be trans or non-binary. It is not open-minded or compassionate to encourage a child to look up gender on the internet, and to talk to adults who ask them intimate questions and for intimate pictures. It is not open-minded or compassionate to tell a child that their teenage problems can be solved overnight by a rejection of their own body and a denial of their biological sex.

We need to wake up. Gender theory is not the next frontier in the culture war or a new battle for civil rights; it is an unevidenced ideology that is causing harm to women, children, and people who are gay and lesbian. There is a significant amount of work to do to fix the safeguarding failures that are taking place in some schools, and I am delighted that my right hon. Friend the Education Secretary is aware of some of these issues.

To recognise non-binary as a gender identity in statute would be a mistake, separating law from reality and putting vulnerable children at risk. I echo the comments made by my hon. Friend the Member for Don Valley (Nick Fletcher): this is a debate about people, and I fully recognise that there are many people in this country who identify as non-binary and should absolutely be accepted. However, this is a matter of putting ideology into law, and we should resist that.

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[Kirsten Oswald]

He is shaking his head, so he agrees with me. However, I support what he said about the importance of tone in the discussion. I am not sure that anyone concerned about this at a personal level will have been particularly comfortable hearing the debate, but I absolutely support the hon. Member’s calls for a proper tone to be adopted. He also spoke about listening being important—we have to not only listen, but take in what we are being told.

It is welcome that we are having the debate. These kinds of conversations are well overdue. In my view, we should be on a journey to a situation in which it is an absolutely normal and unremarkable thing to accept people for who they are. We should not have to hear othering comments and we should not hear portrayals of non-binary people as a threat—that is not fair, helpful or accurate. I am uncomfortable with the notion expressed by the hon. Member for Penistone and Stocksbridge (Miriam Cates) that this is something we should consider in the context of its being a medical complaint or a concern that is related to people who are neurodiverse, for example.

[Miriam Cates]

I thank the hon. Lady for letting me intervene, but the evidence is pretty clear that a disproportionate number of children who identify as trans or non-binary are autistic—they have been diagnosed as autistic, with many more awaiting diagnosis. There is a clear link between children who are neurodiverse and children who are choosing to go down this path. Does she not think that that in itself is of concern and that those children should be surrounded with safeguarding support?

[Kirsten Oswald]

I think that all children should be surrounded with safeguarding and support—I suspect that that is something the hon. Member and I can agree on—but to conflate autism diagnosis and people who are non-binary is a mistake and unhelpful in the bigger picture.

I also did not agree with the assertion of the hon. Member for East Worthington and Shoreham—

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[Anneliese Dodds]

That is a slightly different question from the one I was discussing. I hope the hon. Member is aware of the fact that the Equality and Human Rights Commission has recently released guidelines on those matters. I may well already have shared such a changing room; very often, women’s changing rooms will have separate cubicles, and in any case, that is how people often choose to try on clothes. If the hon. Member is interested in that matter, he could look at the EHRC’s guidelines.

In the spirit of what I have just said, Labour urges the Government to focus on the treatment of non-binary people, and to especially focus on the need for research. The hon. Member for East Renfrewshire (Kirsten Oswald) referred to the fact that the Government’s LGBT 2018 action plan committed the Conservatives to launch separate calls for evidence on the issues faced by non-binary and intersex people. The Government appear to have contracted the National Institute for Economic and Social Research to investigate that area, but no research appears to have been carried out. The EHRC has also

“recommended that further understanding was needed before any legislation was brought forward”.

We believe that additional research is particularly important when it comes to those people who might describes themselves as intersex, or as having differences in sex development. That refers to the relatively small number of individuals who are born with any of several variations in biological sex characteristics—for example, in chromosomes or genitals—some of whom may describe themselves as intersex and some of whom may describe themselves as non-binary. I appreciate, again, that not everybody uses those categories.

[Miriam Cates]

The hon. Lady is being very generous with her time and making a very measured speech. I have been listening carefully and what she says about intersex individuals and disorders of development is very important. However, we must be clear not to conflate what are genetic disorders with gender identity. Those are two extremely different things. People who are born intersex do have a sex on their birth certificate. They do, and should, receive close medical care, but that is a very different thing from gender identity—something for which there is no biological marker at all. That is the subject of today’s debate.

[Anneliese Dodds]

I most certainly have not conflated the two; I would have thought that it was quite clear from my comments that I was not conflating the two. I have been very explicit about the difference. This matter did come up earlier, because the hon. Member for Don Valley suggested—unless I misheard him—that doctors might take some of the decisions if there are differences in sex development. There has been a very significant discussion around this, as I am sure the hon. Member for Penistone and Stocksbridge (Miriam Cates) is aware. In countries such as Germany, quite a bit of work has been done on the possibility of ensuring that people can make decisions for themselves at the age of medical consent and competence—if it is still healthy for them to do so—although if those particular biological characteristics are aligned with physical health problems, earlier intervention might be required. The hon. Member for Don Valley mentioned that earlier. We need more research into the prevalence of those cases in the UK, as we do not have much data on them.

Of course, we are discussing the matter in the context of the Government rowing back on their commitment to adopt a ban on conversion therapy that would cover trans people. Let me be crystal clear. Such a ban must not cover psychological support and treatment, non-directive counselling or the pastoral relationship between teachers and pupils or religious leaders and worshippers, or—and this should go without saying— discussions within families. Indeed, the interim Cass review has made it clear that there is a disturbing lack of support and healthcare for children and young people with gender dysphoria, especially when it is accompanied by an additional diagnosis that requires care. I regret that that is in common with the current general lack of treatment for children and young people in this country, where many waiting lists are spiralling out of control.

A ban on conversion therapy covering trans people would prevent what the British Medical Association and the mental health charity Mind have intimated is psychologically damaging abuse. It seems to me that only this Government could spend time arguing over whether a form of abuse should or should not be banned rather than supporting people in their daily lives.

It would surely also be helpful for the Government to explain in more detail their understanding of the barriers to altering the current legal categories around gender and—separately, given the frequent and unfortunate elision of both concepts—sex. We need to understand the complex practical consequences to which the Government have referred. They have stated in response to calls for a non-binary category for passports that “a coherent approach” needs to be maintained “across Government”. They have not, however, fully explained why some forms of documentation appear not to indicate whether the holder is male or female.

Surely additional research and transparency from Government are needed, not least to explain their reasoning in those cases. Useful learning can be drawn from the different ways in which comparable nations have approached these issues. I think it is a symbol of the maturity and strength of our country that we are able to compare our public policies with those of other countries and learn positive and, indeed, negative lessons. That is a positive rather than a negative.

Finally, we must do more to tackle gender stereotypes in the first place. As a convinced feminist, I so often feel that we have moved backwards rather than forwards in that regard. Care work and jobs in catering and in the creative industries are for boys and men just as much as they are for girls and women. Jobs in manufacturing and science that use—dare I say it?—hard maths are for girls and women just as much as they are for boys and men. Of course, all jobs should be open to non-binary people, too. We need to eliminate gender stereotypes, including those based on body image—I agree with the hon. Member for East Worthing and Shoreham on that.

Above all, we need to make sure that everyone in our country can reach their full potential, and that cannot happen when we have such a degree of gender stereotyping. As I have said, the key value for Labour in considering such issues is respect. Issues of sex and gender are highly emotive, for understandable reasons: they are fundamental to people’s sense of self and so much more, including for those who identify as non-binary.

To conclude, I will reverse John Major’s adage. When we come from different viewpoints on these issues, we surely need to condemn each other less and understand each other more.

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[Mike Freer]

The hon. Lady seeks to tempt me down a particular path, but the only view I have on that is the view of Her Majesty’s Government, which is that the Bill will proceed without the trans inclusion while we do further research on the complexities. All I can say to her is that it is a work in progress, and I cannot be tempted down that path at this stage. However, I have committed to ensuring that some of the day-to-day issues facing LGBT+ people are addressed across Government, and I hope to be able to discuss further details in the coming months.

Members have referred to single-sex spaces, and the hon. Member for Oxford East talked about the guidance that has been issued by the EHRC. Members also took part in what I thought was a very good debate in Westminster Hall a few weeks ago. Those on all sides of the debate agreed that clarity on the law and on the rules around single-sex spaces was to be welcomed, and I think that is a position that we are getting to. It is important that the principle of being able to operate spaces reserved for women and girls is maintained, and I think we all agree that that clarity is important.

Turning to prisons, there have been incidents in the past, but I refer Members to the answer given by the Under-Secretary of State for Justice, my hon. Friend the Member for South Suffolk (James Cartlidge), who made it abundantly clear that the rules were changed three years ago and that there have since been no incidents in prisons. Where a prisoner is placed is not down to what gender the prisoner identifies as; it is down to the offence for which they have been convicted, their physiology, their medication and where they are on the trans journey. All those factors form part of the risk assessment, which is how the Prison Service comes to a conclusion on where place a prisoner. It is simply not true to say that a prisoner can self-identify and place themselves in a prison of their choice.

I want to touch on the issue of trans people in single-sex spaces. For many years, trans people have used single-sex spaces in their gender without issue, and we have no interest in curtailing that. The law strikes the right balance, and we will not be changing it. The newly published guidance does not change the legal position or the law; it simply seeks to provide clarity to providers on the existing legislation, and that will not change.

To touch on the issue of trans adolescents and healthcare, it is important that under-18s are properly supported in line with their age and decision-making capabilities. To be clear, the child and adolescent Gender Identity Development Service does not provide any surgery to those under the age of 18, or permit any treatments that the NHS believes to be irreversible. That is the NHS’s view and the Government’s position. If Members believe that the NHS is prescribing puberty blockers inappropriately, that is a matter for the NHS and Members need to take it up with the Secretary of State for Health and Social Care.

[Miriam Cates]

I fully accept the Minister’s comment that what is being done within the NHS is within current guidelines. However, there is no evidence for the use of puberty blockers in gender treatment. Their evidential base is for other conditions, and while they may stop certain elements of puberty taking place, their effect on those going through puberty—the effects on brain development and bone density—are not known at all. Those drugs are being used without the evidence that is required.

[Mike Freer]

That may well be true, but I urge my hon. Friend to take it up with the Secretary of State. This is a matter for the NHS; it is not a matter for me, and at the moment the NHS is of the view that puberty blockers are reversible.

I also put on record that the interim report that Dr Hilary Cass has published is absolutely clear. Members have referred to the incidence of other factors that may cause gender distress, such as neurodiversity. Dr Cass is absolutely clear that it is the clinician’s duty and role—a protected right—to ensure that they explore all possible causes of gender distress. She will be issuing firmer guidance to ensure that clinicians, as well as their clients and wider society, understand that it is the role of the clinician to explore all possible reasons for gender distress. That clarity will be welcomed not only by the patient, but by parents, teachers, clinicians themselves and wider society.