Mick Hartley

Sonia Sodha in the Observer – Labour’s reaction to Kemi Badenoch’s plan to define sex is not only a hapless fudge, it’s legally illiterate:

The law is a mess, and the situation is made worse by activists such as Stonewall who have taken advantage of the confusion to mislead people about what it says….I’ve spoken to several lawyers who practise in this area and all say the law badly needs clarification. The Equality and Human Rights Commission agrees. Spelling out that sex in the Equality Act means biological sex would make the law on single-sex spaces, services and sports much clearer, and so help organisations fulfil their rights and responsibilities to women. It would in no way undermine the act’s important but separate protections against discrimination for trans people under gender reassignment.

There is so much to criticise the Conservatives for on women’s rights and provision, but on this they are right, though they should have prioritised doing it before an election. So why the frenzied anger about Badenoch’s proposals? It is the symptom of a mindset often found in those who spend too much time online, which rots their critical faculties and drives them to see the world as a cartoonish set of heroes and villains. To them, Badenoch is hateful and so anything she says must be wrong. It doesn’t help that there are many men, including on the left, who feel little empathy for women who don’t want to be forced to undress or talk about their trauma in front of, or receive intimate care from, anyone male, regardless of how they identify. I also suspect that the heightened irrationality on display is a product of the different standards that black women are held to, whether they have the politics of Badenoch or Diane Abbott.

The polite way to describe the Labour response to Badenoch’s proposal is “legally illiterate”. The party claims that the law in this area is clear, despite the fact it is so unclear that, as the result of a judicial review that has made its way through the Scottish courts, in the next year or so the supreme court will have to try to interpret what parliament meant by “sex” in the Equality Act. Labour will argue that the problem can be fixed through statutory guidance, which is nonsense: guidance cannot change the law; only parliament can. As one lawyer I spoke to said, Labour’s position is to uphold the problematic status quo. If it goes ahead with its plans to make a GRC easier to get without first clarifying the law, it will make things worse.

But in a world where few journalists understand the laws and there is no shortage of people willing to express a zealous view based on vibes instead of knowledge, Labour has got away with it. Why expend political capital on solving a real and important issue when you’ve got pundits who will happily denounce it as the invention of an evil witch called Badenoch? It’s a win-win situation: the said pundits get the thrill of fomenting their culture wars, even as they performatively call them out; Labour frontbenchers escape accountability for their hapless fudge. It’s only the female survivors of rape and abuse who can’t access single-sex services who lose out.