Equality Law in a Postmodern World

Always above all else: how does one act

If one believes what you say? Above all how does one act?

Bertolt Brecht – The Doubter

So let me play devil’s advocate for a minute and suggest that I actually agree with this new gender-based definition of human beings: that I accept the premise that the male and female categories are no longer useful or accurate and we need to completely change the way we see and account for one another. What we see with our own eyes is no longer necessarily to be trusted: we are likely to get it wrong if we rely on our senses alone. We must ask people how they identify, what pronouns they prefer and how they would like to be seen by us, and if we don’t do this we are disrespectful and even transphobic.

We are learning new things about gender all the time and we must take on board all these new discoveries. In this new and current scenario, male and female as characteristics no longer have any real meaning, and must instead be replaced with gender identity as the primary marker between different groups of people. Biological sex must give way to inner belief and innate identification, and it is on this basis that we must now look to the law and analyse the way it is formulated to protect particularly vulnerable groups of people. It has worked quite well (although not perfectly) up until now, in terms of protecting women from men and helping them to recover from male violence, as well as making social policy to ensure fair representation. But can it still work in the same way now that we know so much more about the way in which our gender identity informs our sex? Will it still do the job it was intended to do?

The first problem I can see is that the law as it stands is not at all equipped to deal with this new way of categorising people, because the law we enjoy today was written before we had all this new understanding of gender identity. We are therefore living in a world which finally recognises the supremacy of individual gender identity, but within a framework of equality law which doesn’t. This is a problem because equality law for women has been based on something that until now has been universally recognised – biological sex – and this is no longer relevant or even acknowledged. Sex differences have been used as the criteria for all the research and evidence gathered so far in order to inform public policy, as well as for legislation intended to level the playing field and keep women safe. The evidence which has been collected and analysed over the decades has shown clearly that biological males (boys, men) are responsible for most of the physical, sexual and violent crime, and biological females (girls, women) aren’t. It is on this basis that the Equality Act legislates, funding is made available and public policy is written.

We have legislation then, based on outdated criteria. We have a binary law for a spectrum world. A radical new understanding requires a radical new approach to the law. When there is such an unequivocal difference between the perpetrators and the victims of certain crimes, based on a measurable set of parameters, then it is inadequate to simply add to the protected group another category of people who do not share the discrete properties of that group. To do this would be to dilute the protection and make the group as a whole less safe. Fiddling around the edges of a law intended to protect a group which no longer effectively exists does not make good law: it lessens the protection for the original beneficiaries whilst not helping the new group it is supposed to include. Equality law based on sex is clearly no longer fit for purpose. A new set of laws is needed which is based on a new set of criteria which adequately reflects the modern world.

We need a complete overhaul of our equality laws, and as far as ‘sex’ goes we need to start from scratch. Anything less would just destroy the binary, and all the evidence and research behind it, without providing any back-up protection for the spectrum. Like the previous old-fashioned laws, the new laws must be based on adequate research and evidence, which this time must look at gender identity instead of sex. Statisticians must quickly get to work to assess which genders are more likely to be sexually violent, say, and which ones might be more likely to need protection. If the vulnerable are to be protected to the same degree as they are now there is little time to lose.

A problem can be seen straight away here of course, because an accurate means of assessing people, based on a quality seen only on the inside of their heads, does not immediately spring to mind. If a way can be found to overcome this difficulty then we can hopefully look forward to gender identity activists organising to provide all the evidence needed to ensure that the right protection can be put in place for the right genders. Much as women’s rights activists in the past insisted on this process and worked towards it to create a safer and fairer world for women, gender idealists must now do the same for all the genders. They seem to have confidence in themselves so let’s hope they get on with it.

There is still a problem though. Even if the gender activists manage to do their research and provide all the evidence needed in order to inform new and better equality legislation, it is still the case that ordinary people on the ground might not be able to instantly recognise the people who pose them the most risk. In the old-fashioned binary system between biological men and biological women it was relatively easy. In the vast majority of cases a man would be instantly recognisable as a man and a woman could rightfully object to his presence in her changing room. In this way, the use of the senses was in accord with social policy, and both worked together to keep a vulnerable group as safe as was possible. In today’s world this is no longer an acceptable way of keeping the vulnerable safe. It is after all impolite to assume someone’s gender.

I have given this some thought, because we cannot simply concede defeat on the basis that it’s all way too complicated. In today’s brave new world there will still be people of varying genders who are more in need of protection than others, and we need to find a way of identifying them and keeping them safe. If we can no longer rely on our senses to spot danger then the law as it stands will not work for us. We need to find a way to identify whichever genders the new research tells us are more prone to violence, and which genders will need the law to be on their side in order to protect them.

I think I’ve come up with a solution, and actually it’s so simple you’ll laugh. The answer has been staring us in the face all along. If we make legislation which demands the wearing of pronoun badges by all people in all circumstances at all times, then we’ve solved once and for all the problem of recognising the gender of the stranger in front of us. No longer will we have to rely on the Layla Moran school of soul recognition, which many of us still find impossible. Yes, I know, it feels a bit like the idea of identity cards for all citizens, which keeps rearing its ugly head and then once again being kicked into the long grass because nobody would stand for it in real life. But I think the public are ready to accept something like compulsory pronoun badges: a small thing really for the greater good. There are already many people on social media very willing to admit their gender identity to a watching public by putting their pronouns in their bios. It is surely a small step to ask everyone to wear a pronoun badge at every moment of the night and day, just to ensure the safety and comfort of vulnerable minorities? It is the only way I can think of, now we’re not allowed to use our common sense anymore, for everyone to be sure who they are sharing safe spaces with, and for everyone who needs it to have protection under the law. The census question would be solved in a stroke. Instead of asking numerous complicated questions about sex and gender, all these could be replaced with the one question which matters: ‘What are your pronouns?’

I think the world is ready for this, and it is in any case probably the only way a new gender-based Equality Act could work. I hope the lawyers amongst you will take this on board and begin to work towards a new law fit for the postmodern world. The Equality Act 2020: protecting the spectrum and not just the binary.