‘The Supreme Court gender ruling had given us clarity. Now this Labour law will torpedo that'
Henrietta Freeman is a quadriplegic 31-year-old who cannot speak and relies on around-the-clock care to help with just about every aspect of her life. Perhaps understandably, given the nature of that care, she insists on her carers being female.
But now she fears that a Government bill days away from becoming law will undermine her ability to guarantee that she is only cared for by someone who is biologically female.
'I need this care to maintain my comfort, dignity and safety,' she says. To Freeman, who has a neuromuscular condition which continues to worsen, Labour's bill is a 'threat to disabled women who require same-sex care'.
She's not alone in her concerns.
Henrietta Freeman, who is quadriplegic, fears Labour's proposal will make it harder to ensure she is cared for by a biological woman
Women's rights campaigners have been warning ministers that the bill, which is intended to introduce a new digital ID system, will play havoc with the ability of companies such as gym chains and public bodies like the NHS and police to ascertain someone's sex – just after the Supreme Court ruling intended to bring much-needed clarity.
The bill will allow people to prove their identity and facts about themselves by using a new voluntary Government app that is linked to what the bill calls 'digital verification services' (DVS), backed by a government 'trustmark'. It will draw data from a number of sources but the bodies being presented with the app won't be able to tell which documents it is relying on.
That means that if the app states that the user is 'female', that information could, in theory, either be based on the sex stated on their passport or driving licence – which they could have arranged to have changed from their biological sex – or their birth certificate, which cannot be changed.
To worsen matters, says Helen Joyce, of the women's rights charity Sex Matters, under the new system the app will have to be 'treated as more authoritative than any pre-existing record – or the evidence of your own eyes.'
Helen Joyce warns the new legislation will make the gender listed on a Government app more authoritative than any pre-existing record or personal evidence - Jeff Gilbert
In practice, she says, 'if you have a man [seeking] gym membership and he has a digital ID saying he's female, you're going to have to accept that. Currently it's your choice what you would do with a passport with 'F' [for female] on it. It would be difficult to say no to him going into the ladies' changing rooms or toilets, but not impossible.
'But if you've signed up for the 'digital verification services' you will have to accept Government sources as authoritative.'
On Wednesday, the Conservatives attempted to amend the bill so that sex data would be taken solely from birth certificates. The amendment was defeated by 363 votes to 97, meaning the bill will now move onto its final stage – the third reading – before becoming law.
Tory MPs had previously warned that 'inaccurate data entrenched by the Bill' could 'pose a risk' to vulnerable people, but the MP for Walthamstow, Stella Creasy, was among many Labour MPs who criticised the Opposition amendment, calling it 'a targeting of the trans community which is deeply regressive.'
Heather Binning, chief executive of the Women's Rights Network, agrees with the Conservatives' concerns. She says that the new law will essentially introduce gender self-identification – a system which involves the state adopting whichever gender an individual chooses to be known by – 'through the back door'. 'It flies in the face of the Supreme Court ruling,' she says. 'It will be mayhem if it goes thorough as it is. If official documentation says a man is a female with the new system, employers and others will be inclined to accept it. This part of the Bill needs to be scrapped.'
Campaigners celebrate after the Supreme Court ruled that transgender women were not legally women - Reuters
One King's Counsel (KC) specialising in equality law agrees that the digital ID 'is in danger of becoming a de facto gender recognition certificate', which allows individuals to legally change their gender.
For example, it could lead to incorrect medical treatment being provided for a person whose biological sex is recorded inaccurately. One GP explained how she had witnessed a woman who identified as a man receiving an initial diagnosis for an appendectomy, but when the consultant and anaesthetist later saw the patient they decided to ask about her biological sex. Having established that she was a biological woman, the clinicians reassessed her and she was confirmed to have had a gynaecological problem. As such, this lack of correct data could also put trans people at greater risk in a medical emergency. It could also cause a care agency to send a male nurse or care worker who identifies as a woman to provide intimate care to a female patient at home.
'The proposed Data Bill will put disabled people, particularly women, at more risk than they are already,' says Freeman. 'Every instance of a disabled woman being made to feel uncomfortable, or even worse, will be the responsibility of those who voted it through as well as the disability charities who have stayed silent.'
Alice Sullivan, the University College London sociology professor who wrote the Government-commissioned review on errors in the state's handling of data on sex and gender, warns that 'the thing with data is, garbage in, garbage out'.
'This Bill could be a really good opportunity to correct all these problems at source. If they implemented the recommendations of my review they would be correcting the data on the sex variable. Any data that is not reliable simply shouldn't be going into this system, because it will lead to contradictions - people can have different documents saying different things about their sex and you only want correct information.'
The Department of Science, Innovation and Technology declined to comment.
The area this is likely to affect most acutely is healthcare. 'This feels potentially dangerous,' says Elaine Miller, a physiotherapist from Edinburgh and affiliate to ScotPAG, a health group of Scottish professionals advising on gender. 'It already happens that women require single-sex care and because care agencies are short staffed the women get sent a man. If the new rules mean biological men are recorded as women, that's still the same problem. If a woman asks for single-sex care it should be honoured and if a new system makes that more difficult to regulate then that's a new problem. If it's introduced as it is it could take years to fix.'
Many firms and public bodies might welcome the new ID system on the basis it is Government backed and therefore assumed to be trustworthy. But there are fears that some could use it to avoid any problematic decisions about single-sex care for vulnerable or elderly patients.
'There are plenty of areas in which sex matters – it goes far beyond toilets,' says the KC, who asked to remain anonymous. 'Of more concern is intimate care provision for people with disabilities, working in a rape crisis centre – people working in these fields need to know what the sex of the person wanting to work there is. They don't want to know what their gender identity is.
'It's preposterous to argue you can replace data about sex with gender identity. Gender is not a legal category so why would you need to record it? It would only be useful if you wanted to deceive someone about your biological sex and the whole point of having data and having this new ID app is to be able to prove things about yourself.'
Sandie Peggie was suspended from her job as an NHS nurse after objecting to sharing a changing room with a transgender nurse - PA Wire
Healthcare professions say that the recording of sex and gender have already become muddled within the NHS and that the bill is a recipe for worsening the problem. An employment tribunal in Scotland is currently hearing the case of Sandie Peggie, a nurse with 30 years' experience, who was suspended for alleged bullying and harassment after objecting to sharing a female changing room with a doctor who was born a biological man and identifies as a woman.
'The NHS needs to know which of its patients and staff are male and which are female in order to fulfil its public service equality duty,' says Samantha*, a director of service transformation at an NHS trust. 'If the data used for the digital ID is not accurate it drives a coach and horses through public bodies' duty of care. The law says this must be achieved via biological sex, but data sets that don't accurately record sex cut across all that. The same applies to chaperones for intimate care. That's unacceptable and potentially unlawful because the patient did not consent to it. The new ID scheme would make the operation of the NHS really difficult.'
Sally Wood, 57, an NHS therapist from Portsmouth, agrees. 'I work with very vulnerable people, including people with severe brain injuries,' she says. 'I became worried about how staff would present themselves as different to their biological sex because sex segregation is one of the primary forms of safeguarding we have. If we are lying to patients we are breaking our ethical principles. In the NHS they will record the sex as whatever an individual wants.'
The potential ramifications of the bill even extend as far as dating sites, on which it would be possible to create an account with Government-backed verification of a person's sex even though that would be the opposite of their biological sex. Campaigners say this could facilitate 'catfishing' – people online using deception to strike up relationships.
Those familiar with the Bill as it is currently written are concerned it paves the way for a scandal waiting to happen, akin to the SNP's endorsement of trans activism. In Scotland, Isla Bryson, a biologically male transgender rapist, was initially taken to a women's prison, and Nicola Sturgeon drew fierce criticism for refusing to call Bryson a man.
'There will be some kind of equivalent of the Nicola Sturgeon/Isla Bryson scandal where the whole country will go 'How did we get to this?',' says Samantha. 'And the politicians will just be left looking at their shoes. So let's not mess it up in the first place.'
'It will blow up in their faces eventually,' says Sullivan, 'It defeats the whole object if you just accept that some cases will be wrong.'
*Name has been changed
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