On 11 May, UN expert on sexual orientation and gender identity Victor Madrigal-Borloz issued a report condemning the Equality and Human Rights Commission (EHRC) for its current anti-trans policy direction. In particular, the report highlighted the recent letter from the EHRC to the equalities minister Kemi Badenoch as cause for alarm.
The letter in question gave advice on redefining sex under the Equality Act to mean ‘biological sex’. This would greatly lessen the legal weight of gender recognition certificates. It would also strip trans people of many of their current protections under the law.
He took some time in his report to speak out about the rampant misinformation used to transphobic ends during the political and social debates around gender self-identification in Scotland. Here, he reiterated that self-ID is intended to counter pathologising approaches which posit that trans people are mentally ill.
As it is a constitutional matter, he took no position on Westminster’s use of the Section 35 veto against Scotland’s Gender Recognition Reform (GRR) Bill. However, he did emphasise the negative effects it had on the trans Scots who counted on the new legislation, and lamented that it:
de facto deprived trans persons in Scotland of the benefits of a simplified process by which to obtain Gender Recognition Certificates.
EHRC: Confirmation of discrimination
Later in the report, he moved on to address the EHRC’s recent recommendations to the government. Unsurprisingly, he found that:
the objective of the EHRC was to offer the government a formula through which it could carry out discriminatory distinctions currently unlawful under UK law, and that will remain so under international human rights law.
Madrigal-Borloz’ letter reiterated much of the criticism already levelled at the EHRC’s recommendations by LGBTQ+ groups. In particular, Stonewall recently wrote to global human rights watchdog GANHRI (the Global Alliance of National Human Rights Institutions), calling out the EHRC’s blatant discrimination.
Like the UN expert, Stonewall pointed out the deep division between the EHRC’s advice and the Welsh and Scottish committees within the organisation. It also stated that the commission is:
a failed institution, it is harming the trans community in Great Britain, and it is undermining the status of independent human rights institutions and systems.
No clarity on ‘biological sex’
Madrigal-Borloz also exposed one of the most glaring flaws in the EHRC’s letter. Baroness Kishwer Falkner, the EHRC chair, originally said that:
A change to the Equality Act 2010, so that the protected characteristic of ‘sex’ means biological sex, could bring clarity in a number of areas
However, the UN expert’s findings completely undermined this appeal to ‘clarity’ under the law. When he asked an EHRC representative how they planned to define ‘biological sex’, he was “shocked” to hear that they had no definition at all. Similarly, no such definition currently exists in UK law.
Instead, the report stated that the EHRC:
specifically conceded that, in the context of the letter, the intended meaning of the term “biological sex” is to define women as “women who are not trans.”
Essentially, the recommendations from the EHRC did little to clarify anything. Instead, they were intended solely to redefine trans people’s status under the law. Madrigal-Borloz opined that this was “wholly unbecoming” of a human rights institution.
Deep concern for the instrumentalization of prejudice in the context of the upcoming national election was a constant observation throughout most of the meetings held during the country visit.
Beyond this, the report also pointed to the media’s role in the rise of anti-trans vitriol:
media channels are also spreading anti-trans discourse and stereotypical imagery of LGBT persons as dangerous, often employing homophobic and transphobic rhetoric.
As if in answer, Madrigal-Borloz’ report has been met by near-total silence from the mainstream press. Outside of queer outlets like Pink News, and passing mention in the Metro, the Canary couldn’t find a single paper reporting on it.
This is, of course, a marked contrast to the widespread reporting on UN special rapporteur Reem Alsalem’s criticism of the GRR Bill in Scotland. Alsalem wrote a letter giving her opinion, rather than a full report, like Madrigal-Borloz. However, her words were quickly picked up across a wide spectrum of outlets.
This difference in the reporting on Madrigal-Borloz’ report and Alsalem’s letter was massive. This only serves to demonstrate the lopsided and distinctly transphobic nature of the UK’s mainstream media.
Madrigal-Borloz’ warnings come not a moment too soon. Whilst the ILGA (International Lesbian, Gay, Bisexual, Trans and Intersex Association) once considered the UK to be most LGBTQ+-friendly country in Europe, the most recent ranking showed that the country has now plummeted to 17th place.
The EHRC freely admitted that it has no working definition of ‘biological sex’. Its appeal to clarity rang hollow when it stated that women are simply ‘not trans women’. The UN expert clearly recognised that it was motivated by discrimination against trans people.
However, none of this matters if no-one will listen. With the media and politicians on both the left and right hellbent on discrimination against trans people, it seems as though this latest damning report from the UN is destined to be ignored – along with the trans people it seeks to defend.
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