Dodgy Transcript but here it is:
And lastly, the Equality Act and single sex spaces. cases that have arisen under the Equality Act are yet another vivid illustration of how aspirational legislation can so easily be blown off course. This point was made by Lauren Fox QC, in his foreword to Paul yells excellent Policy Exchange paper on the Act. The Act represents a codification of the UK anti discrimination laws some 116 prior acts and regulations, in part prompted by European law, the ACT gold plates and does go further than what the EU required in some areas. The aim of the act was no doubt laudable, but its interpretation sits uncomfortably without human rights tradition. Its interpretation by various sectors is causing huge confusion to those attempting to decipher the correct balance of competing rights and protected characteristics. And to be clear I do not advocate repealing or scrapping the Equality Act. I am concerned about the incorrect interpretation of its provisions. This particularly applies applies to how we, as a society support those people who claim protection of gender reassignment whilst at the same time supporting those who seek protection of rights divined by biological sex. both public and private bodies are struggling to understand their obligation. And my aim today is to provide clarity on the law. So for the purpose of gender recognition certificates we do not operate a system of self identification in England and Wales. But some service providers are behaving as if they have a legal duty to admit biological males who identify as females into women only spaces from rape crisis centres and domestic abuse refuges to bathrooms and changing rooms. In my view, this is not in accordance with the law.
6:08
The law supports the position adopted by my colleagues Nadine Dorries is culture secretary and Nadeem Nadine. So how we went in post is education secretary, paragraph 26 and 27 of sheduled three of the Equality Act are clear. They permit direct discrimination on grounds of sex. They permit women only and men only services provided that the rule is a proportionate means of achieving a legitimate aim. So in law, single sex services are intended for one sex only. That is the very thing permitted by shedule three, it follows that it is not possible to admit a biological male to a single sex service for women without destroying its intrinsic nature as such. Once there are X Y chromosome adults using it, however they define themselves personally. It becomes mixed sex, the existence the existence of a gender recognition certificate creates a legal position, but cannot change biological reality. The operation of the Equality Act is such that the permission to discriminate on grounds of gender reassignment is permission to discriminate against someone who may be the right biological sex for a political particular activity, but has the protected characteristic of gender reassignment. So by way of example, a women only rule for a women's judo class excludes all men, and that will be lawful under paragraph 26. If a joint service would be less effective, and it is a proportionate means of achieving a legitimate aim, it will no doubt put people with the protective characteristic of gender reassignment for example, a trans woman and by that I mean a biological male who identifies as a female at a disadvantage compared to those without that characteristic. But in my view, if the benefit that it confers is sufficient to justify direct discrimination against a whole class of men, it will in almost all circumstances, be sufficient to justify indirect discrimination against a much smaller class of trans women. This interpretation is in fact supported by the explanatory notes to the Equality Act. Those notes give an example of a counselling service for female victims of sexual assault. In that case, it is clear that an individual with a protected characteristic of gender reassignment for example, a trans woman could be lawfully excluded. If organisers believed that otherwise, women biological women would be unlikely to attend the session. This position has also been upheld. By recent guidance from the Equality and Human Rights Commission, as well as the case law such as the alias case in the court of appeal approved in Homer in the Supreme Court. So if one group incurs a modest, particular disadvantage, and another group incurs a more serious particular disadvantage, justice, okay. Justification for exclusion can be lawfully established. The challenge is particularly acute in schools and for those whose professional responsibilities are to child welfare. Obviously school staff are highly motivated to do their best for children. To do this, they need to understand their legal obligations. They need to understand the evidence about how best to support gender questioning children, and they need to know how to make a best interest decision for each and every child under their care. The problem is that many schools and teachers believe incorrectly, that they are under an absolute legal obligation to treat children who are gender questioning according to their preference in all ways, and in all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing parents, or without taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia in my view, this approach is not supported by the law.
10:33
For the sake of clarity, I'm going to set out my view on the legal position under the Equality Act. Now by way of preliminary note, under 18 are unable to obtain a gender recognition certificate, and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth. And as used by Dr. Hillary cast in her interim report, I will use the terms trans boy to me and a biological female who identifies as a male and trans girl to mean a biological male who identifies as a female. I use both as shorthand to include all those claiming protection under the characteristic of gender reassignment as referred to in the Equality Act. So taking the issues in turn. Yes, it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single sex. This does not constitute unlawful direct discrimination on grounds of sex under sheduled 11 Nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim. Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child who identifies as a trans girl from using the girls toilets. This does not constitute direct sex discrimination, and it is not unlawful indirect discrimination on grounds of gender reassignment indeed, if the school did allow a trans girl to use the girl's toilet, this might be unlawful indirect discrimination against the female children. Further in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the school premises, brackets England regulations 2012 and the education records, independent school standards regulations 2014. Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girl's dormitory. This is neither direct sex discrimination, or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both boys and girls, protecting girls privacy, dignity, and safety are eminently legitimate aims. Yes, it can be lawful for schools to refuse to use the preferred opposite sex pronouns of a child. This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child's parents, or unsupported by medical advice. Nor is it necessarily indirect discrimination on grounds of gender reassignment, where a school has considered and can justify the approach as set out in the interim cast report. This is social transitioning, and it is not a neutral Act is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents, or without medical advice, increase their exposure to a negligence claim. For breach of their duty of care to that child.
14:09
Yes, it can be lawful for a school to refuse to allow a biologically male child who identifies as a trans girl to wear a uniform, a girl's uniform. This will be a significant part of social transition and the inherent risks of that could present an airport legitimate aim. Therefore, this does not necessarily constitute unlawful direct sex discrimination, nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment Court of Appeal authority permits different dress codes for male and female employees, and no rational distinction to my mind, can be made for school uniforms. Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans girl from participating in girls. Single sex sporting activities. This does not constitute unlawful direct sex discrimination. Nor is it unlawful, indirect discrimination on grounds of gender reassignment. The single sex exception is based on the average performance of male and female participants. And lastly, yes, parents have a right under the Freedom of Information Act 2000 to request access to teach materials used in their children's state funded schools. They could also make an internal complaint followed by referral to the Department for Education and ultimately, via judicial review. But parents do have a right to know what has been taught to their children. It is therefore wrong for schools to suggest that they have legal obligations, which mean that they must address children by their preferred pronouns names or admit them to opposite sex toilets, sports teams, or dormitories, a right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions and sheduled three and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination schools are legally permitted to take a single sex approach. This is supported by the case law. Our Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. That would be terrific the Equality Act giving with one hand and promptly taking away with the other.
16:38
Schools should consider each request for social transition on its specific circumstances and individually, and any decision to accept and reinforce a child's declared transgender status should only be taken after all safeguarding processes have been followed. medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child's best interest, rather than being driven by a generic misunderstanding of legal duties. This legal view is supported by the emerging evidence as the interim cast report points out, and I'm quoting, it is important to acknowledge that it is not a neutral act to socially transition a child and there are different views on the benefits versus the homes and better information is needed about the outcomes given and I quote, the lack of agreement, and in many instances, the lack of open discussion among clinicians. There are very real dangers of schools socially transitioning children in this way. Since the interim casts report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors, that something else may be going on. The fact that there has been an enormous increase in the number of cases in addition to a complete change in the case mix of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history. The fact that approximately 1/3 had autism or other types of neurodiversity, and there is over representation of looked after children should illustrate the complexity of what schools are dealing with. Schools have a duty of care in relation to the health, safety and welfare of their children. And they risk breaching this duty when they encourage and facilitate a child's social transition as a blanket policy, or take the decision to do so without medical advice. Given the emerging nature of the evidence, and the fact that even clinical professionals find it challenging to know whether transition is the right path for the child. It's not reasonable or fair for teachers to have to make this onerous decision alone. That's a decision that can have lifelong and profound consequences for a child. That's particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding or medical or surgical procedures, and even more so, if done without the knowledge or consent of the child's parents to emphasise again, before going ahead. With social transition. Schools should get the best multidisciplinary team around the table, including clinical professionals and parents. In children's healthcare. The legal presumption is that parents act in the best interests of their children until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents. These children should not be treated any differently. I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure that children do receive that support in a timely fashion. And more generally, that being gender nonconforming successes and supportive stereotypes of what it means to be a boy or girl can be challenged. But it's important that we take a prudent approach particularly as we await the forecast report. interpretations that support unthinking and absolute approaches to gender are rooted in new political ideologies outside the scope or intention of the Equality Act. They undermine other rights, which do merit protection under the act. including protecting those who attempt to question the dogma.
20:27
These ideologies propagate the view that a person's biological sex is quite distinct from their gender. These theories are premised on an assumption that regardless of biological sex, children must be assisted to decide their gender is highly contested. outlooks presuppose that gender is subjective, and binary approaches to sex are exclusionary. To assert that a buyer a person's biological sex is objective, and cannot be changed is now a risk to someone's employment status. Freedom of thought, belief and conscience are often set aside in this debate. These ideas are pervading the public sector and are being taught in some schools without any democratic scrutiny or consideration of the consequences. It's a highly politicised agenda promoted under the guise of diversity tolerance and inclusion. That's despite the Department of Education guidance published in February this year, which makes clear that where parties and political views are covered, schools must ensure that these are presented in the appropriate context which supports a balanced presentation of opposing views. It's important to be clear that what what are scientifically tested and establish facts and what are questionable beliefs, in my view, a primary school where they are teaching eight or nine year old pupils. year for children, key words such as transgender pansexual asexual gender expression intersex gender fluid, gender dysphoria questioning or queer would be falling foul of government guidance. Nor is it age appropriate to teach four year olds that people can change sex or gender in line with Department for Education guidance, primary schools do not need to set exercises relating to children's self identify gender. In these instances, schools, who may be well intentioned but misinformed, are breaching their duty of impartiality and indoctrinating children into a one sided and controversial view of gender. age appropriateness is the critical factor, the younger the child and the more simplified the explanation, the greater the risks that school that schools won't achieve the right balance. Better, no child should be made their punishment or disadvantage for questioning what they are being taught, or refusing to adopt a preferred pronoun for a gender question child or complaining about the gender questioning child using their toilets or changing rooms, or refusing to take part in activities promoted by Stonewall or other such organisations. The right to freedom of belief, thought conscience and speech must be protected to diversity and equality are at risk. When as a society, we divide groups, we divide everyone into separate groups, and then silence of views which may challenge those groups. This is not what democracy is about, and it is not what the law requires. Of course, this is a complex and emerging area of law, but I hope to provide legal clarity to schools and parents today. So in conclusion, we have gone through a lot today. Thank you for sticking with me. But I want to make two final remarks so we don't lose sight of the bigger picture. Firstly, what I have considered today is not whether human rights should be protected in this country, but rather how they should be protected, and I've endeavoured to save the liberal position. It takes them to my second point. The specific issues that I have raised are controversial, and no doubt will animate society with divergent views. On the scope of competing human rights engaged, no matter what side of the debate one takes on the scope of fundamental rights, and what the law ought to be the primary and legitimate vehicle to resolve that disagreement is parliament. The reason for this is simple and yet profound. It is because of our it's because our parliament is elected by the people, for the people to enable self government, Parliament, the voice of the people and the original source of law must answer these profound questions and clarity of law is vital to achieve that goal.