Artillery Row

Denying sex change is not a crime

Despite what you may have heard from Kay Burley

An extraordinary “hold the front page” — it’s not illegal in the UK to say that people can’t change sex. That men are male, and women are female.

This will have come as a surprise to Sky News’ Kay Burley. On Thursday morning, with all the confidence of a kid who hasn’t yet discovered that they aren’t right about everything, she told Transport Secretary Mark Harper that she’d (finally) taken the opportunity to look at the Equality Act that morning. She came to the conclusion that the Prime Minister had committed a crime by declaring that “a man is a man, and a woman is a woman”.

“Not at all,” said a clearly stunned Mark Harper. “Yessitis,” she interjected. “It’s against the law according to the Equality Act 2010”.

She gets half a point for not calling it the Equalities Act (in this interview, at least). As for the rest of it — what a depressing and egregious failure for Sky News, which has clearly not seen the need for serious engagement behind the scenes on this febrile issue since it’s been a slow-burning political grenade. Burley, and everyone behind her — the item producers, the programme editor, the political team, the legal team and the editorial policy team — are so crashingly wrong they have mountains to climb before their coverage of sex and gender can be anything but incoherent under these conditions.

What a contrast to July’s Beth Rigby interview with the Stonewall chair, where nuanced questioning teased out the awkwardness of his position. Is this a new breed of impartiality — where news organisations believe balance has been achieved when they countervail ignorance with understanding?

Partly, yes, it is. The conversation about sex and gender has been at the forefront of social and political discourse for years, and the relationship between the Equality Act and the Gender Recognition Act is pivotal. Despite this, it’s clear that few if any broadcast outlets have conducted or produced any kind of researched guidelines for their teams about the interplay between them or the raging controversy over self-identification.

This is now a huge election issue, and too many journalists are unprepared. This superficiality of understanding is a direct result of delegating guidance on sex and gender to diversity departments, with their hotlines to transactivist organisations and their Stonewall-inspired interpretations of the law.

Editors are too afraid to put their names to any guidelines that might offend the trans lobby, and they convince themselves that the diversity teams are experts. They almost certainly know they aren’t, but at least it means they can kick the can to someone else’s department and claim they got the job done.

What should their diversity teams be telling them? Well, that the Gender Recognition Act provides a legal framework for individuals to change the sex recorded on their birth certificate. Once in possession of a Gender Recognition Certificate, a reasonably straightforward and inexpensive process, the law says they are to be treated as the opposite sex for all purposes — but for a number of exceptions, which included sport (that section is now repealed and replaced by Equality Act provisions), parenthood, succession and primogeniture. The exceptions, it’s argued, are an implicit acknowledgement that the GRC is a legal fiction.

Having a GRC doesn’t mean you’ve changed sex. How could it? That is impossible.

The Equality Act on the other hand doesn’t just deal with sex and gender; it’s a comprehensive piece of legislation aimed at promoting equality and preventing discrimination. There are nine protected characteristics, including sex and gender reassignment. There are also plenty of exceptions for lawful exclusion of people of the opposite sex from various activities and spaces, so long as it would be a proportionate means to a legitimate aim.

Diversity teams often leave sex out of the list of protected characteristics

Then the diversity teams would explain the EHRC guidance, which says privacy and dignity are amongst those legitimate aims. They would point the staff in the direction of the EHRC documents for further clarity.

Most relevant here, they’d also point out that being protected against discrimination on the grounds of gender reassignment without a GRC doesn’t mean you have to be treated as the opposite sex. “Misgendering” isn’t illegal, but it might constitute harassment under different legislation.

Even if you know nothing about either act, it’s pretty obvious (or should be) that — given Stonewall has been campaigning for self-identification of sex since at least 2017 — we don’t already have it. If you don’t know anything about the self-ID controversy, you shouldn’t be interviewing anybody at all about it.

That’s to say nothing of the Maya Forstater ruling, which means that actually prohibiting people from saying that people can’t change sex — as Kay Burley seems to imagine is the law — would quite likely be found to be a breach of the EA under freedom of belief.

Lastly the diversity teams might drop in that the meaning of “man” in the Equality Act is given as “a male of any age” and “woman” as a “female of any age”.

This is the basis of what any journalist covering this issue should know.

Diversity teams do none of this. They often leave sex out of the list of protected characteristics. They say it’s illegal to reveal that someone is trans. They elevate gender identity to legal godliness. They say preferred pronouns should always be respected.

What they really do most effectively is provide protective cover for editors who are able to say that they’ve consulted experts on how to report the controversy. This brings us to the current omnishambles and its horrific clangers — all the way from lowly subs believing it’s a crime to describe a male paedophile as a man, to big name presenters like Kay Burley misleading the nation in a prime time interview.

I’ve gone right to the top at the BBC, asking them to produce proper legal guidance on the GRA, the EA and the Forstater ruling, both for editorial and HR needs. In one meeting with a very senior diversity leader, I actually had to spell out “Forstater”. Two years after her case finding, which had very significant implications for HR teams as well as editorial, he couldn’t even spell her name. It’s inconceivable that an HR team so ill-versed in the law could offer any kind of functional advice.

Guidance in this field must be yanked away from HR (which is what diversity teams basically are) and dropped on the desks of very senior editors, who should be locked in a room with lawyers until they’ve come up with a balanced and legally sound approach. It’s complex, but it’s the only way broadcasters can be sure their presenters are conversant with the basics of a touchstone issue that will probably have more impact than they’d like on the next election.

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