13.04.2023

Yet more lies

The Tories are way behind in opinion polls and have therefore turned to culture war issues such as trans people and further curbing free speech. Mike Macnair eviscerates what passes for their arguments

The Conservative Party continues with its witch-hunt around gender issues. This is not surprising, since, after the take-down of the Scottish National Party, Sir Keir Starmer’s Labour leadership has caved in on the issue, and all it can think of to deflect the Tory culture war is to start using US-style ‘attack ads’ accusing Rishi Sunak of being personally soft on paedophiles, and such-like.

Meanwhile, on the left, the Morning Star’s Communist Party of Britain has actually positively adopted the Tories’ anti-devolution arguments (in defiance of its own programmatic commitment to ‘progressive federalism’);¹ while, on the other side, much of the far left merely tails ‘trans rights’ activists.² As we saw with the campaign of defamation round ‘anti-Semitism’ allegations, while the gender issue continues to work for them, the Tories and the advertising-funded media will continue to push it.

The Tories have three initiatives currently on the table to keep the issue in the news. In no particular order, the first is the proposal to revise the Equality Act 2010 to include a ‘biological definition of sex’ - put to the Equalities and Human Rights Commission by Kemi Badenoch as minister for women and equalities on February 21, with the commission responding on April 3.³ The second is Policy Exchange’s report, ‘Asleep at the wheel’, published on March 30, arguing that pro-trans initiatives in schools involve breaches of the schools’ ‘safeguarding’ duties.⁴

The third is the Higher Education (Freedom of Speech) Bill, currently in the final stages of its progress through parliament, which is designed to protect freedom of conservative speech and that of high-net-worth individuals only, while allowing ‘cancel culture’ to continue against alleged anti-Semites (and hence anti-capitalists).⁵ The bill has been and will continue to be marketed as directed against the cancellation of gender-critical feminists, though its aims are much more general.

Defining sex

Last year a petition received more than 70,000 signatures which demanded:

The government must exercise its power under s.23 of the Gender Recognition Act to modify the operation of the Equality Act 2010 by specifying the terms, sex, male, female, man and woman, in the operation of that law, mean biological sex and not ‘sex as modified by a Gender Recognition Certificate’.⁶

The government was obliged to respond by October 2022, but that response came late (on January 23 this year), stating that no change was necessary.

By February 21, then, there had clearly been a change of mind by the government - not specific to Kemi Badenoch, who had been minister for women and equalities throughout. Her letter refers to a meeting with Lady Kishwer Falkner, chair of the EHRC, on January 12; but the letter does not indicate the substance of that discussion.

The EHRC response is, at most, mildly encouraging to the Tories’ project. It argues that for some purposes there would be advantages to a ‘biological’ definition of sex - chiefly matters of freedom of association (though in this case, the effect of the Equality Act as limiting freedom of association is merely taken for granted); and the rather marginal case, though not purely hypothetical, of a trans man who becomes pregnant. On the other hand, it points out a number of cases where a general ‘biological’ definition of sex would cause new anomalies as significant as those that are claimed to result from the ‘legal’ definition of sex.

And it mentions in passing that the UK’s insistence on a ‘biological’ definition of sex lay behind findings against it in the Strasbourg European Court of Human Rights (it is necessary, as usual, to point out that the Court of Human Rights has nothing to do with the European Union). These findings led, in turn, to the Gender Recognition Act 2004. Badenoch indicated in the Tory leadership hustings in July 2022 that she was “open to” withdrawing from the European Convention on Human Rights, and thus from the court.⁷ But the foreign policy issues still make actual withdrawal fairly unlikely. The EHRC comments that “The more targeted any change is, the less likely it is to be a violation of article 8 rights” (to private life) and suggests: “There may be other ways to achieve roughly the same ends, for instance a series of more targeted amendments to specific provisions in the [Equality Act], on which you will wish to take additional advice.”

The response does not ask what a ‘biological’ definition of sex would be, and how it would work. The implicit insistence on radical binarism implies that the Tories do want to get back the rule in Corbett v Corbett (1970) that no amount of medical treatment can affect ‘biological sex’, meaning XX or XY chromosomes. This rule involves plain cruelty to post-operative trans people and also systematic institutionalised mistreatment of intersex people. But, as soon as we depart from the claim that ‘biological sex’ means genetics (without regard to developmental variations or surgery), producing a workable and defensible definition of ‘biological sex’ that will be radically binary becomes seriously problematic. The EHRC letter does not say this; but it is a good reason for any changes to be targeted and limited.

This rather cagey response from the EHRC is reported in the media as a simple endorsement of the original idea that there should be a “biological definition of sex”.⁸ This spin tells us what the actual agenda is: it is not cautious tinkering with the Equality Act to deal with particular problems. Rather, it is a purity-politics culture-war, whose underlying theme is given by Genesis 1:27 and 5:2, “male and female created he them”, or its eugenics-variant attempt to recuperate Darwinism for the same political purposes. It also tells us that what matters in capitalist politics is how the press barons spin the story.

Safeguarding

Policy Exchange’s new report, ‘Asleep at the wheel: an examination of gender and safeguarding in schools’, is written by Lottie Moore, who holds a BA in religion/theology and an MA in political theology/ philosophy.⁹ In 2017 she wrote in defence of the requirement that schools promote “British values”, and in 2020 contributed a chapter to a book on the Grenfell Tower disaster, which “attempt[s] to view the Grenfell tragedy through the lens of biblical violence, deploying René Girard’s concept of mimetic violence”.¹⁰ It should be reasonably clear from this vita that Moore’s perspective is that of some variety of conservative Christianity.

The report comes with an assortment of endorsements from MPs. For example, Mark Jenkinson (Conservative) comments:

The erosion of single-sex boundaries - at least 28% of schools are not maintaining single-sex toilets - should concern us all. This report lays bare the stark reality that some schools are routinely placing contested gender identity beliefs ahead of child wellbeing.

Another Tory, Miriam Cates, says:

The protection of children from political indoctrination is foundational to democratic society, and yet this report shows that we are currently failing to protect a whole generation of children from the destructive effects of extreme gender ideology.

Here “political indoctrination” and “extreme” just means ‘stuff I disagree with’.

The report claims at the outset (in the executive summary) that

Safeguarding refers to a range of measures that must be met to ensure children are healthy, safe and able to flourish. These principles are well-established, enshrined in law and universally understood to be instrumental to the functioning of a responsible society.

I flag this point at this stage because “safeguarding” is in fact a novelty, being a usage developed around the time of the Safeguarding Vulnerable Groups Act 2006. The concept and regime has grave disadvantages, because - like other early 21st century ‘safety’ regimes - it tends to generate bureaucratic overkill. This tends to produce performative ‘safeguarding’ (tick-box operations and undue risk-aversion), which removes agency and opportunities for education, properly so called (development towards autonomy), from the ‘safeguarded’, without in practice proportionately reducing risks of harm.

The report thus commences from a false starting point. On the basis of this, it charges:

By uncritically accepting contested beliefs on gender identify, as well as adopting affirmative practice, which involves affirming a child’s belief that they are the opposite gender to their sex, schools are failing to consider their safeguarding duties - not just to gender-distressed children, but to their peers as well.

It should, then, be clear that what is proposed is to prohibit the sort of policies, designed to reduce distress among trans teens, which have been adopted by schools.

The background, the executive summary claims, is that:

Over the last decade, external agencies with partisan (and sometimes overtly political) aims have received large amounts of government funding and, accordingly, have gained influence within the education sector. They have used this influence to embed contested gender identity beliefs within schools.

We are, I suppose, asked to imagine that Policy Exchange does not have “political” aims …¹¹

The report proper begins with the figures for radical increases in the number of ‘children’ (mainly teens) being referred to gender identity services since 2010. These are given a startling appearance by references to the rate of increase without mention of the absolute numbers (which, in fact, remain very small). The rhetorical suggestion - not made explicitly, so not open to direct challenge - is that there is a ‘trans epidemic’ among children.

Chapter 2 reports at length statutory and bureaucratic directions on ‘safeguarding’. No use is made of relevant case law, and this is notable where - at section 2.5 - strong emphasis is given to parental authority, without reference to the issue of the ‘Gillick competence’ of some under-16s to consent to medical treatment without parental knowledge and agreement. Chapter 3 addresses relationships, sex and health education. Again the spin is very strongly towards parental control.

Chapter 4 reports the “gender affirmative approach” (with negative rhetorical spin). This relies in substance on the Cass review of the Tavistock and Portland Gender Identity Clinic. Chapter 5 reports, with strongly positive spin, the alternative medical/psychiatric approach to gender distress of “watchful waiting”. Chapter 6 returns to the numbers - again on the basis of the Cass review: there is overrepresentation of girls; of children in care; and of children with (other) mental health issues. The author rightly concludes, following Cass, that the numbers are not sufficiently “granular” for causal inferences to be drawn; but nonetheless spins the narrative rhetorically in the direction of presenting as trans being due to other mental problems, rather than the reverse. None of these chapters can be considered as evidence in relation to school policies.

Chapter 7 finally gets us to schools and what they are doing. Policy Exchange

sent FOI requests to 304 schools, representative of the number of schools in every local authority (LA) in England. Due to the size of the sample, schools per LA were selected at random. Of 304 requests, 56 special schools were excluded, three requests were refused, 91 did not respond, and 154 responded - either fully or in part - to the questions asked.

This is not a particularly large sample of the 24,413 schools in England,¹² and the report provides very limited information about how the sample was constructed to secure a representative quality.

The first question asked was about parental involvement; unsurprisingly, the majority of schools take something approximating to a ‘Gillick competence’ approach, so that parents are not routinely informed of their child’s (possible) trans identification. Less detail is given on school responses to the view taken by the report that ‘safeguarding’ requires the involvement of medical professionals; and for schools operating self-identification policies (40% generally; it is not clear that the other categories - ‘with parental consent’, etc - represent additional or overlapping responses).

The other major concern of the report here is how far schools are maintaining sex-segregated toilets, changing rooms and sports. Another no-no for the author is schools which “require other children to participate in the social transition” - meaning, schools which have policies against anti-trans bullying or require other students to use new names and/or pronouns.

7.5 on ‘What are schools teaching on sex and gender’ largely consists of reports that schools are teaching that gender may be variant from biological sex (72%); the author tells us that one resource used “reduces a child’s identity to a number of highly contested beliefs, which again are not based in evidence” - but, of course, school teaching materials rarely go into depth on the evidence in their support. I am personally opposed to the lines of argument about the social construction of the body run by Judith Butler and others.¹³ But there is a difference between believing that these lines of argument are wrong and believing that there is “no evidence” for them. Moore tells us a little later that “Sex is immutable and defined by chromosomal DNA” - nailing her colours to the Corbett v Corbett mast.

Chapter 8 claims to ‘cash’ the alleged inconsistency of school policies with ‘safeguarding’. Moore argues that allowing ‘social transition’ amounts to a positive intervention in favour of transition rather than mere acceptance of the child’s choices. Beyond this, particular emphasis is again placed on parents’ rights; and also on the importance of sex-segregated facilities. Chapter 9 argues that the teaching on sex and gender reported in 7.5 is inconsistent with government guidelines on teaching of LGBT issues - this brief chapter is under-supported, and I guess is intended to draw on the arguments of gender-critical lesbians and gay men that ‘gender affirmative’ trans policy tends to erase lesbian and gay identity; but it is not clear that this is an argument that Moore or Policy Exchange actually wish to make, and the point is obscurely treated. Chapter 10, ‘How did we get here?’, is narrative about the evolution of Stonewall in relation to public support, and in relation to its trans rights policies.

I have gone into this report in some depth, in spite of the fact that it has as yet had only fairly limited immediate-response media coverage rather than a running campaign.¹⁴ In this case it is not a matter of media spin alone: this is Lottie Moore’s spin and Policy Exchange’s spin. There is a real danger that this report, whose foundations are seriously insecure, will be taken to be ‘truth’. But what it is arguing for at the end of the day is that schools must be forced back to acting on the basis of, and teaching, Genesis 1:27 and 5:2: “male and female created he them”.

Conservative speech

The Higher Education (Freedom of Speech) Bill is currently in the final stages of its progress through parliament. As I have already said, it is designed to protect freedom of conservative speech and that of high-net-worth individuals only, while allowing ‘cancel culture’ to continue against alleged ‘anti-Semites’ (and hence anti-capitalists). And it has been and will continue to be marketed as directed against the cancellation of ‘gender-critical feminists’.

It is not yet enacted; because, in the ‘ping-pong’ stage of reconciling the Lords’ amendments and the Commons’ version, the Lords as of March 21 had not yet completely capitulated to the government’s political agenda, and the government seems to have decided to take a little time before going back to the Commons, in order to decide whether to accept the Lords’ latest amendments (as their spokesman in the Lords did) or to push the issue.¹⁵

The bill was originally proposed as far back as May 2021, and I wrote on the original proposals in June that year, arguing that they were in substance merely a fraud, with a view to being spun in the media.¹⁶ I am not going to repeat all of what I wrote then, but some points need to be reiterated in a summarised form.

The eventual bill is slightly simplified relative to the original proposals: in particular, the proposal that student unions should be directly regulated by the Office for Students (OfS) in general is gone and student union ‘charitable status’ is retained: since the Charity Commission is effectively Tory-controlled, it may even be a safer pair of hands for Tory interests than the OfS. But the OfS is to issue free-speech guidance, and to run a “free-speech complaints scheme” - without fees; but as far as can be seen, without any bar on legal representation or limit on costs, so that the scheme itself can be made a form of costs intimidation.

An additional element is created by ‘China paranoia’. Clause 9 of the bill imposes on the OfS a duty to monitor the “overseas funding” of higher education institutions, their “constituent institutions” (thus, for example, Oxford and Cambridge colleges) and student unions as potentially affecting freedom of speech. Though the formula is general, China is the plain target and was already mentioned in 2021.¹⁷

The bill continues to call for free speech “within the law”. And in this context no step whatever has been taken to get rid of the Equality Act 2010, section 26, which defines “harassment” so widely as to make sharp disagreement ‘unlawful’. It is section 26 which has been the usual ground of cancellations in ‘cancel culture’. To leave section 26 in place is merely to pretend to promote free speech.

The core of the bill is a restatement of the existing duties of higher education institutions in relation to free speech and the direct application of these duties to student unions. On this basis there is a set of bureaucratic paperwork requirements for ‘codes of practice’, returns, and so on.

And - the subject of the Lords amendments - the sting in the tail: clause 4 provides for civil (‘tort’) liability for no-platforming. Since this will be a variant of defamation law, and since King Charles and his ancestors since Queen Victoria routinely violate Magna Carta, chapter 29, by authorising defamation lawyers to sell and deny justice in this field, it will mean that those who themselves are very wealthy, or are backed by the Tory Party, can sue for being no-platformed: not anyone else.

The House of Lords has fought something of a guerrilla struggle against this aspect of the bill. Of course, it cannot be openly said in the Lords that the free market in legal services amounts to the sale and denial of justice: that would be unparliamentary language and absolutely unacceptable to our learned friends among their lordships. But they did insist on the OfS complaints scheme; and in December 2022 they voted to strike out the civil liability clause. In February, the Commons opposed this amendment.

The Lords’ latest amendments contain two elements. The first is that the no-platforming of the claimant in the tort claim must “cause the person to sustain loss”. This the government can probably agree to, since Lord Howe, speaking for the government at an earlier stage, said that “loss” includes damage to reputation (as it does in defamation). The second is that the claimant must have exhausted the OfS complaints scheme before suing in tort. The government can probably agree to this too, since it serves the underlying purpose, that the tort remedy should be available only to the wealthy. But maybe they will think it is a ‘concession’ to be rejected for reasons of avoiding being seen to give way to the so-called ‘blob’, and insist on full capitulation or use Parliament Act procedure to force the Commons version of the bill through.

In all these operations what is dominant is spin and lies. Trans people are being cynically targeted, not because they actually pose any sort of threat to the capitalist order, but because they are a vulnerable minority - and one which sticks out its neck to be chopped off through the ‘gender recognition’ paradigm and slogans like ‘Trans women are women’. They can thus be targeted for larger aims, such as taking down Scots devolution; but also taking down the Labour leadership, who have plenty of ‘diversity’ skeletons in their closets, and turning the next general election into a US Republican-style ‘culture war’.

The means of this system of spin and lies rest, in the last analysis, on the advertising-funded media, which can amplify the lies and downgrade or silence the truth. To combat this amplification and silencing, the workers’ movement needs its own, independent, media. And for that purpose we need to actually organise on a scale inconsistent with the current regime of competing sects - each producing a very similar publication, which tries to appeal to broad masses through a focus on ‘bread and butter’ issues.

. www.communistparty.org.uk/the-gender-recognition-bill-and-equality-law.↩︎
. Eg, C Liao, ‘Struggling for trans rights’ RS21 April 7.↩︎
. www.equalityhumanrights.com/en/our-work/news/clarifying-definition-%E2%80%98sex%E2%80%99-equality-act.↩︎
. policyexchange.org.uk/publication/asleep-at-the-wheel.↩︎
. The current state of progress of the bill, and links to the texts, can be found at bills.parliament.uk/bills/2862/stages.↩︎
. Information at petition.parliament.uk/petitions/623243.↩︎
. ‘Liz Truss “prepared to withdraw” UK from European Convention on Human Rights’ The Independent July 13 2022.↩︎
. Eg, ‘Biological women set to be protected by change to equality law’ The Daily Telegraph April 4; ‘Kishwer Falkner: A biological definition of sex is needed’ The Times April 4; ‘Law change could aid single-sex spaces - watchdog’, BBC News, April 4; ‘Ministers could stop trans women from accessing single-sex hospital wards and competing against biological women in sport with overhaul of the Equality Act’ Mail Online April 4.↩︎
. Or perhaps the other way round (her pages at ResearchGate and bio at Policy Exchange have the degree titles differently stated; in any case, the Oxford degree is probably MSt rather than MA).↩︎
. www.secularism.org.uk/opinion/2017/10/british-values-a-source-of-unity-in-polarised-times; www.researchgate.net/publication/340037995_You_can_pull_people_out_of_the_fire_but_why_did_it_start_in_the_first_place_Locating_Grenfell_between_the_Powers_and_the_Cross. Also from 2017 is uncommongroundmedia.com/plain-sight-mend-cage-non-violent-extremism.↩︎
. See powerbase.info/index.php/Policy_Exchange; also www.opendemocracy.net/en/dark-money-investigations/think-tanks-transparency-funding-who-funds-you.↩︎
. www.besa.org.uk/key-uk-education-statistics-2.↩︎
. M Macnair, ‘Clearing the ground’ Weekly Worker February 9: weeklyworker.co.uk/worker/1429/clearing-the-ground.↩︎
. Eg, ‘Many schools “routinely disregard” safeguarding principles on gender identity’ The Independent March 30; ‘Schools to receive guidance on gender issues after “concerning” report, says Rishi Sunak’ Sky News March 30; ‘Children’s safety “seriously compromised” over spread of trans ideology in schools’ Daily Express March 30; ‘Children allowed to self-declare gender at nearly half of schools’ The Daily Telegraph March 30.↩︎
. The debate on the latest Lords amendments is at hansard.parliament.uk/lords/2023-03-21/debates/F0FBA99B-3ABE-41F8-B2BF-5BD0C6E843B2/HigherEducation(FreedomOfSpeech)Bill.↩︎
. ‘No-platforming fraud’ Weekly Worker June 24 2021: weeklyworker.co.uk/worker/1353/no-platforming-fraud.↩︎
. ‘Self-censorship on China “biggest freedom of speech issue” facing universities’ Evening Standard May 12 2021.↩︎