A year on, why is Labour still stalling over Supreme Court’s historic gender ruling?
With every day that Labour fails to issue guidance on single-sex spaces, the suspicion persists that this Labour government does not take women’s rights seriously
This morning, former Labour MP turned commentator, Tom Harris, will repeat a daily ritual he adopted several months ago. He will post a reminder on social media that it is now 219 days since the Equality and Human Rights Commission (EHRC) sent women’s minister Bridget Phillipson its draft guidance on single-sex spaces. With the first anniversary of the Supreme Court ruling that prompted the guidance only days away, Phillipson has stubbornly refused to table it in parliament.
Instead, the report remains on her desk while she considers it “thoroughly and carefully”. Meanwhile, service providers and businesses remain confused as to how best they can provide separate-sex spaces, with some using it as an excuse to flout the law.
Phillipson’s reluctance to follow usual procedure is puzzling. Typically, when a Supreme Court ruling only requires updated guidance and not new legislation – as in the case with the For Women Scotland (FWS) judgment which ruled that sex in law means biological sex – it should only take a few months for the judgment to be rolled out.
Even if Phillipson was to table the EHRC guidance in parliament on Monday, when MPs return from their Easter break, it would be another 40 sitting days before it became operational – one year and two months after the Supreme Court ruling.
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Nervous of a backlash?
It may be that the various government departments that have a stake in the guidance are dragging their feet. As women's rights campaigners have argued for a decade and more, the confusion over sex and gender has consequences for safeguarding in schools, patients’ rights and the safety of women prisoners. Phillipson will need to be sure that the education, health and justice ministers are happy with the updated guidance.
More likely, Phillipson is nervous of a backlash from those Labour MPs and activists who still cling to the notion that human beings can change their sex at will. She is still recovering from her humiliating defeat in last year’s Labour deputy leadership contest, when Lucy Powell beat her resoundingly, and she may not have the courage to face another showdown with her comrades.
But whatever the reason, her reluctance is causing real problems, not least because, in the absence of statutory guidance, the courts remain the only way to resolve issues around single-sex spaces and safeguarding, as witnessed by FWS’s most recent legal action.
Phillipson’s stand-off has allowed the Scottish Government to continue with its policy of allowing male offenders who identify as women to be housed in a female jail, a procedure that FWS insists is out of line with the Supreme Court ruling. Their recent legal challenge to the policy is still under consideration by the Court of Session.
Preaching tolerance while smearing opponents
Whatever the outcome of FWS’s latest judicial review, and despite Phillipson’s incalcitrance, the three women behind what is arguably the UK’s most significant grassroots organisation for a generation have good reason to celebrate this week.
As FWS director Susan Smith told me earlier this week, neither she nor her co-directors, Marion Calder and Trina Budge, believed that the organisation they set up nearly ten years ago with the late Magdalen Berns would still be going today. “It has subsumed our lives for a decade,” she says. “We've faced down threats and abuse, some from politicians or funded lobbyists who preach about tolerance and ‘detoxifying’ public life from one side of their mouths and smear us with the other.”
And still they persisted, risking their personal financial future with a succession of legal cases that ended with their Supreme Court victory on Wednesday, April 16, last year. While nothing can dim the moment of “pure joy” FWS experienced when Lord Hodge read out the court’s judgment, the women are disappointed with how politicians have reacted in the 12 months since.
Smith explains: “Even though we have been proven to be correct over and again, John Swinney has not made good on his promise to meet us, while Bridget Phillipson has failed to respond to a request for a meeting. Ultimately, they cannot ignore the ruling. The law, as they [the politicians] all admitted, is clear and it is firmly on the side of women.”
Protests and celebrations
Women will gather in protest across the UK this afternoon, including in Phillipson’s Sunderland constituency and outside the Scottish Parliament, to express their anger at the government’s delay in implementing the Supreme Court ruling.
On Wednesday, the independent MP Rosie Duffield, an influential women’s rights supporter, will host a meeting at Westminster where FWS, along with the former EHRC chair Baroness Falkner and others, will discuss the way forward. And who knows what celebrations will take place on Thursday’s anniversary?
An astute politician, one who acted on her feminism as well as just talked about it, would use the landmark date to table the EHRC’s guidance, and secure women and girls the right to single-sex spaces, as set out in the 2010 Equality Act. But don’t hold your breath.
Last week, Wes Streeting, Labour’s Health Secretary and man who would be Prime Minister, wrote in Pink News that every trans person deserves to feel safe and be respected. “That’s not up for debate,” he said.
A woman’s right to respect and safeguarding shouldn’t be a matter for discussion either, but with every day that passes and the EHRC guidance stuck in the government’s pending tray, the suspicion persists that this Labour government does not take women’s rights seriously. The Supreme Court ruling last April was clear: sex matters. Time for the Labour party to show that women matter too.
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