Labour Must Stand with Trans People Against a New Section 28

Tory plans to scrap Gender Recognition Act reform have come alongside a demonisation campaign against trans people which threatens years of progress. Labour must fight back.

Last week we saw a step forward for trans people in the United States with the Supreme Court deciding that discrimination in the workplace because of sex, which was already illegal, covered trans people as well. At the same time, here in the UK we took a retrograde step, proposing what amounts to a new Section 28 on trans issues. How did we get here, and what are the consequences for socialists?

The situation arises because the proposal to modernise the Gender Recognition Act (2005) and update terminology in the Equality Act (2010) has been effectively scrapped by the government. Instead, it proposes to enforce sex segregation on local councils and restrict what they and medical doctors can do to support trans people.

The new reforms were proposed because the current law includes phrases that are now jarringly out-of-place, including references to a mental “dysphoria,” “transsexuals” and “reassignment.” These phrases and diagnoses have been phased out by the World Health Organisation, are in breach of the Council of Europe recommendation on trans people and against the Yogyakarta Principles of international laws on LGBT issues.

So, some minor changes in the wording and application of the law were needed, but substantively no major legal changes have been proposed. But how did these technical changes blow up into the front pages of the gutter press and produce another chapter in a long-running culture war? 

For many social conservatives, both on the economic left and right, there was a hatred of the 2005 changes and the fact that “gender reassignment” and “transsexuals” were protected from discrimination. Of course, opposition to the 2005 changes and 2010 protections doesn’t exist in society in any great number.

The latest British Social Attitudes Survey shows that the public do not take transphobic positions. 83% say they are “not prejudiced at all” towards transgender people while 72% of women say that they are “very” or “quite comfortable” sharing a toilet with a trans woman.

Just like the religious right last week in parliament losing the arguments on abortion in Northern Ireland or no-fault divorce, a strong reform of gender recognition legislation that enshrined trans rights would be another nail in the coffin of social conservatism. They knew this all too well.

So when, in 2015, a wide-eyed Women’s and Equalities Committee launched an enquiry on trans issues, the right saw an opportunity to pounce. The report only recommended modest changes to abolish the intrusive psychiatric assessment regime which requires a two-doctor sign-off and instead replaced it with a community support and declaration system, as requested by the World Health Organisation.

If the social conservatives couldn’t kill the update, they could seek to roll back some of the protections gained. It is, of course, an age-old political trick, if you are unable to stop progress, throw enough dirt in the process and hope that some will stick and the whole thing becomes so toxic no one wants to touch it. We have seen this tactic play out time and time again in the last few years, and this issue is a perfect case study.

Rather than attacking the update or even the two main laws, the Gender Recognition Act 2005 and the Equality Act 2010, these conservative forces attacked nebulous concepts which you couldn’t argue with. They raised women and children’s safety in ways that seemed innocuous at first but were ultimately manipulated to cast trans people as predators. These issues on their own are important and worthy of discussion, but here they were being used cynically to undermine the rights of others.

We saw the spectacle of a social conservative shouting “penis” over and over again at trans women during a TV debate, as if this was enough to win the argument. Recently, of course, we saw people like JK Rowling using her own sexual assault as justification for discriminating against a group of people who were not responsible for it. Trans people are no more likely to be rapists; in fact, they are more likely to be victims of sexual assault themselves. That’s why, despite JK Rowling’s hate towards them, hundreds of trans people wrote to complain to The Sun when it trivialised her domestic abuse on a recent front page.

These divide and rule tactics were not a coincidence, they were deliberate. Alarm bells should have been ringing for socialists when it was David T. C. Davies, the notorious right-wing Conservative, who hosted “feminist” groups in parliament to whip up concerns about changes that weren’t even being proposed.

This was a moral panic against LGBT people – with women and children being used as shields for extremist right-wing men, who would abandon their cause as soon as their usefulness was over. In 1988, it was the same tactic. A country which was coming to terms with gay men and lesbians was met with the Conservatives shouting “think of the children.” They spoke about gays corrupting the youth, or how education might change their sexuality. It is a tactic that worked to oppress gays and lesbians for decades, and now they want to do the same to trans people.  

Again, just like in 1988, the government not only proposes to halt progress being made, they also want to take us back. The proposals leaked in The Times suggest banning family doctors and local councils from supporting young people in working through their gender identity. They would only allow support from gender identity clinics (which already have an 18 month waiting time), meaning many young people who need early and sustained support will be denied that help unless their parents can pay to go private.

They also plan to legislate to ban councils providing gender neutral facilities and require them to provided sex-specific facilities with laws which will require people to use only facilities which are listed on their birth certificate. This would reverse many of the gains from 2005 onwards.

The proposals have other worrying consequences too. Effectively, people will be safe from interrogation if they can “pass” as the gender they feel they are. If you are a trans woman that looks like a cis woman then you are unlikely to get questioned; but if you look too “manly” or too butch, you better have that birth certificate to hand or you could be in trouble. It is expensive to have facial hair removed, get the right surgery or to get clothes that look feminine enough. If you can afford it, there is no problem. But if your 5 o’clock shadow is coming through, you’re in trouble.

Just like Section 28, it’s unlikely that these laws will be used in practice. They may never come into force – even the LGBT+ group in the Conservative party oppose the plans. But they will be a signal to every bigot that it is open season to start attacks on trans people. They will create an environment of intolerance and judging what people look like in relation to their gender. This harms us all.

Much of this damage had already been done by the Conservatives government’s open-ended consultation, which was twice extended and given very little guidance. Into that vacuum poured everyone’s fears, legitimate or not, stirred up by the social conservatives and tabloid press. Even so, 70% of 100,000 public submissions on the changes agreed that proposals which upheld trans rights were necessary and overdue. Unfortunately, this course has now been abandoned.

This is not some mistake from the Conservatives. They know that their core social conservative supporters will lap this up. They also know that if they can muddy the waters enough, Labour might come across as the angry protesters for a minority while they support the majority. It will work for a little bit, but culture wars tend to only hold back a rising tide of reform for a while. 

Just as it is quite right to call out people who say ‘All Lives Matter’ when their aim is to diminish black lives, we must be clear that all sides in this debate are not equal. Women’s rights are important – they face ongoing injustices from the gender pay gap to period poverty and domestic violence, to name but a few. But none of these fights for justice are assisted by opposing trans rights.

Those who try to weaponise women’s rights as a tool to push transphobia are hurting women and trans people, and we should not be quiet in calling it out. That’s why it’s right for Labour to stand by its manifesto pledge to reform the GRA. We must give clarity on protected spaces in the Equalities Act to ensure that they cannot discriminate against trans people and that, when a biological sex approach is adopted, it can only be done for medical reasons. 

As socialists, we should also recognise that, while progressive reform of the GRA would be welcome, it would make limited impact in many of the inequalities trans people face today. We must not fall into the liberal trap of equality before the law but not in the lived experiences of trans people.

83% of trans people experience name calling with over 35% experiencing regular physical assault. This leads to 27% of trans young people attempting to commit suicide, 72% self-harming and with 89% seriously thinking about suicide in the last year alone. 65% have been harassed in public spaces and 70% avoid certain spaces for fear of attack. 55% have experience discrimination at work with 45% never being able to declare their trans status for fear of discrimination. More than 50% have had doctors tell them they don’t know about trans health and can’t help them and waiting lists are over 18 months for the first appointment for specialist treatment.

While it is sickening to see trans people being caught up in a lazy attempt by the government to gain headlines, we must also know that their existence was threatened day in and day out even before this latest fiasco. Socialists must not only defend their rights, we must stand with them against exploitation, intimidation and mistreatment by the state.

Trans people deserve better than this. They, of course, deserve a Labour government, but right now they need a labour and trade union movement that will stand by their side. Trans rights are human rights and they are not negotiable.

Update: Sunday, June 28th, 10.30am.

This morning, the author of this article issued an apology over its contents. While it is against Tribune’s editorial policy to amend the contents of articles after publication in the fashion requested, we publish his apology below in full.

I want to apologies [sic] unreservedly about the comments in the article that I wrote last week in Tribune regarding Trans rights in which I mention J.K. Rowling.

J.K. Rowling’s first disclosures of domestic abuse and sexual assault in her recent article on Trans issues were heartfelt and must have been hard to say. Whilst I may disagree with some of her analysis on trans rights, it was wrong of me to suggest that she used her own dreadful experience in anything other than good faith. I have asked Tribune to remove the line in question.

Lloyd Russell-Moyle MP