Statement on Lord Blencathra's proposed amendments to The Health and Care Bill (297F & 297G)

Lord Blencathra is back, with a familiar set of anti-trans amendments in The House of Lords...

In the midst of the biggest public health disaster in modern history, with our doctors and nurses straining every muscle to keep the NHS going, we find it staggering that once more Lord Blencathra (this time supported by Baroness Nicholson) has tabled an explicitly anti-trans amendment to The Health and Care Bill going through Parliament. This amendment would directly harm trans people and create a further burden on services.

Amendment 297G would have the inevitable result that some trans women, regardless of the length of time since they transitioned, regardless of the extent of surgical and hormonal treatments, regardless of their full acceptance in society as women, regardless of whether they have a Gender Recognition Certificate, could be placed on men's wards. This is not due to practical or medical considerations, but ideology. This dreadful, but exhaustingly familiar attack on the dignity of trans people is very likely to breach their human rights. It is also very likely to result in trans people refusing to attend hospital, fearing how they will be treated. For a community that already faces documented prejudice from some within the medical profession, this outcome would be almost a certainty.

Amendment 297F on the other hand is unworkable, badly written and designed to limit the right to free expression of a Trust or Trust employee to describe even the ugliest or most abusive situation in an appropriate way. NHS Trusts all operate policies that are designed to protect the dignity and privacy of patients and if Lord Blencathra is keen to support our doctors, nurses and their vital support staff, he might want to throw his weight behind calls for desperately needed staff, resources and funding, especially with waiting lists climbing due to Covid. With respect to the issue of single sex wards he might also turn his attention to the 2586 breaches of the Mixed-Sex Accommodation guidance (https://www.england.nhs.uk/statistics/wp-content/uploads/sites/2/2022/01/MSA-Stats-Press-Notice-November-2021.pdf) that took place in November 2021 alone, none of which will have been trans people. Earlier in the pandemic, the figure was even higher, caused by a chronic bed shortage whilst NHS staff worked tirelessly for the country. NHS Trusts will only adopt this approach if they have literally no other choice; it is worth noting that should Blencathra’s amendment have been in force, they would have been breaking the law and these (cisgender) patients may not have received treatment at all.

Lord Blencathra's proposed amendment (97ZA) to the Police, Crime, Sentencing and Courts Bill

Statement by Trans Legal Project, January 11th, 2022

We are delighted that yet another attempt to roll back the rights of transgender people in the UK has failed. Casting all trans people as potentially violent sexual predators, as this House of Lords amendment sought to do, flies directly in the face of the law and of basic fairness. It would have seen all trans people who were charged with an offence assigned by default to prisons of their birth sex. This would have happened irrespective of their legal gender including to those holding a Gender Recognition Certificate, the (possibly many) years since they had successfully transitioned, or the severity or nature of their crime. It would also have included those held on remand who may subsequently have been found entirely innocent. When April Ashley was arrested, decades ago, after living as a woman for 30 years, she was placed in a male facility. The people behind this amendment wish to return to this era. All women deserve to feel safe in prison. With respect to the allocation of the very small number of trans prisoners currently held in custody, the current case-by-case system works and is supported by prison governors. We now look forward to the members of the House of Lords who seem recently to have developed a keen interest in the rights of women prisoners to demonstrate their commitment by supporting any of the excellent penal reform charities that do vital work in this field.

Trans Legal Project

Stock Answered

Robin Moira White

Guest blogger and barrister Robin Moira White reflects on her recent experience of contributing to a piece in Prospect magazine discussing trans rights, alongside Professor Kathleen Stock. ***********

I have been asked a few questions about the article in ‘Prospect’ magazine last week featuring answers to 7 propositions by myself and Prof (ex-Prof?) Kathleen Stock, so I thought I would write an article about writing an article (or, at least, contributing to it). I also have a few things to say about her contribution.

In the beginning…

I was contacted by respected editor and academic Alan Rusbridger, who explained to me that he had newly taken over as editor of Prospect and the idea and structure of the piece. It seemed reasonable and I believe in getting the ‘trans’ message out there in a reasonable and sensible way and this seemed like a good way to do it. Alan sent me the 7 propositions (and a deadline!) and I dropped him some text. He questioned a few things I had written in a sensible ‘justify that’ editorial sort of way and we reached a settled text and I waited for publication.

Oh, and Prospect even sent a photographer to get some snaps of me. I am much happier looking serious rather than grinning insanely, so I was happy with what appeared.

The day dawns…

I noted with interest that, although I am still waiting for my paper copy, Prof Stock was able to post a picture of the print edition at 09:13 that morning and there is mention of Sonia Sodha as being involved. I am less impressed with her journalism than with AR’s and would have been much less likely to have been involved had she approached me. Prof Stock also gushes about this being a ‘debate’ breaking the ‘no debate’ barrier when it plainly isn’t and elevates me to a QC, which I am not. So accuracy not a big thing, strange in an academic?

A later tweet from Prospect also talked about KS and I ‘coming together to discuss’ which we plainly didn’t do either. At my request, this misrepresentation was taken down.

The article…

I can’t say that I am impressed by the ‘Gender Wars’ title, which is all a bit tabloid for the space that Prospect wants to occupy. And the intro paragraph, which I did not see before publication, is hardly balanced. JK Rowling and Ngozi Adichie are named as cis women who are said to have suffered ‘vicious attacks’ but the equivalent attacks on trans people aren’t referenced.

It is also said that there are two sides of the debate and that KS and I are on ‘opposing sides’. That isn’t well thought through as on some things we agree and I certainly count myself on the ‘reasonable’ wing of trans rights and am certainly not an ‘activist’.

The substance.

KS tends repeatedly not to answer the question. A judge would find her quite frustrating. On the ‘trans women are women’ question she does not express a view, descending to a discussion of semantics rather than practicality. On healthcare she similarly doesn’t get to a point, talking endlessly about suicide rather than the real healthcare challenges that trans people face. But I guess that’s outside her experience.

On single sex-spaces, KS seems to have played the game of getting into the paragraph as many words frightening to women as she can: (flashing, upskirting, fetishes, kinks, ‘sissification’, forced feminization, pornography, thrill, male violence) but then says that this is all about a ‘reasonable panic’ about males and that we should plan for the ‘worst scenario’. Does that mean that men (and presumably trans women) should only be allowed out of the house on odd-numbered days, leaving even-numbered days for women? It seems very clear that this part of the argument can only be argued on the basis of a (ridiculous) moral panic entirely unlike anyone’s real life.

On puberty blockers, we aren’t that far apart. She raises the difficulties associated with their use, which I acknowledge, but suggests no mechanism for resolving that difficulty. The only mechanism we have is properly informed consent, and I am pleased to see that she does not advocate the absolute ban that the madder wing of the gender-critical movement espouses.

We also agree on the need to collect data as part of the census but she does not engage with the obvious position that a gender question plus a gender-identity question can give that answer (where needed) without trespassing on a trans person’s life.

Where we are plainly far apart is on the reform of the Gender Recognition Act. Quite chillingly, she ends with:

‘For these reasons, I believe there should be gender recognition reform, at least at the level of clarification to maintain women’s access to female-only resources where needed, and to protect their capacity to prove sex discrimination. But the reforms in question would not be in the direction of self-ID.’

Chillingly, we are not told what protections or access she believes should be taken away from trans people, or the justification for that, and the legal basis set out before seems to be rather a muddle. (Perhaps she would find my book on trans law helpful?) She is a signatory to the hateful WHRD which proposes banning all trans women from women’s toilets for example, so perhaps she means that. We must not let such failure to be clear about the horrific nature of proposals go unremarked.

Would I do this again or engage in a ‘debate’?

I would happily write for Alan Rusbridger again although I might ask who is lurking in the background. The rights of trans people to live in peace and comfort should never be up for ‘debate’ and the vile attacks made daily by some parts of the media and particular interest groups are a stain on our society. But we will not defeat them by remaining silent.

Robin Moira White

22 December 2021