Last week, it emerged that Hibo Wardere, a survivor of and indefatigable campaigner against what even the woke kids at Amnesty International still call Female Genital Mutilation (FGM), has started selling T-shirts emblazoned with the slogan “I am a woman. Get over it.” This is in response to Hibo being monstered on social media by trans activists – some of them survivors of an incorrect use of their pronouns – for not campaigning against FGM in a way that is sufficiently inclusive of scrotum-owners. Or something.
And this week, in the House of Lords, the scrotum-owners were at it again. Well, two scrotum-owners: Barons Andrew Adonis and Michael Cashman.
On Monday, just minutes into the Second Reading debate on the Ministerial & other Maternity Allowances Bill – which creates a discretionary power for scrotum-owner Boris Johnson to allow pregnant cervix-haver Suella Braverman to take paid maternity leave without having to resign as Attorney General – scrotum-owner Lord Adonis of Camden Town popped up on Twitter to announce that “We are listening to a ludicrous speech in the House of Lords from a right wing Tory objecting to gender neutral drafting of legislation on the grounds that it is ‘woke’.”
Given that Baron Adonis tweeted at 3:24pm, it seems reasonable to assume that he was referring to cervix-haver Baroness Noakes, the second speaker in the debate, who spoke from 3:17pm to 3:26pm. And what Baroness Noakes had actually said, literally while Baron Adonis was composing his electronic commentary on the debate, was:
Clause 1(3) [of the Bill] uses the language of “the person is pregnant” and “the person has given birth to a child”.
It is a biological fact that only women can be pregnant and give birth. That is why laws that relate to maternity issues have in the past routinely been drafted using the words “woman”, “she” and “her”. It is not good enough to just say that we have gender-neutral drafting now. When Jack Straw, as [Leader of the House of Commons], announced in 2007 that the Government would use gender-neutral drafting, the context was the long-standing interpretation rule that words referring to the masculine gender include the feminine. This was thought to be demeaning to women, although I personally never felt demeaned by it. The Statement made it clear that this was not intended to outlaw the use of particular genders where only one is involved. It was not intended to prevent women from being mothers. It is ironic that Jack Straw’s generous gesture towards equality has now been turned against women.
Just three years after the 2007 Statement, the Equality Act 2010 was passed. That clearly uses female terminology to define the protected characteristics of sex and pregnancy. On 12 December 2013, your Lordships’ House had a debate on gender-neutral drafting. The Minister, my noble friend Lord Gardiner of Kimble, said: “The guidance”— that is, the guidance from parliamentary counsel—
“also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.”
At this point, the debate had been going for a full 21 minutes and, given the frustrated tone of his tweet, it may be that Baron Adonis had reached the limit of his attention span. But, had he listened on for just ten more minutes, he would have heard his own front-bench colleague, Baroness Hayter, deputy leader of Labour in the Lords, endorse – on behalf of the Labour Party – the concern of the “ludicrous” and “right wing” Baroness Noakes:
As we heard from the noble Baroness, Lady Noakes, there is one unusual choice of words in this Bill: the reference to a “person”, rather than a “woman”, being pregnant. The Minister has provided assurances that this is a drafting issue and does not signal any change of policy, but there is no doubt that it seems at odds with other legislation on maternity rights and protection. More surprising, as we heard from the noble Baroness—she actually called it garbage—was the statement made by [the Minister’s] colleague in the Commons:
“It is not the case that we could legally and correctly use the word ‘woman’ in this piece of legislation”.
Why not, given that it is in the notes and the Minister assured us that
“it will continue to be the policy of the Government to refer to ‘pregnant women’ in broader Government publications”?
We look forward to what the Minister just promised us: his explaining a little more when he winds up about why this language was used and whether there is any chance of it conflicting with other relevant legislation.
A few minutes more, and Baron Adonis could have heard – who knows, maybe he did hear – another of his Labour colleagues, Baroness Gale – admittedly just another cervix-haver – set the issue out in terms that any ennobled scrotum-owner should be able to understand:
It is surprising to me, and to many others, that the word “woman” is not used in this Bill but instead the word “person” is used, as the noble Baroness, Lady Noakes, explained so well. I certainly agree with her. Considering that only women can get pregnant and give birth, I cannot see any reason why “woman” cannot be used. I believe in using gender-neutral language where appropriate, but I do not believe it is appropriate in this Bill. In his letter to Peers, the Minister explained that “person”
“reflects modern drafting convention and guidance, in place since 2007, and common across much of our legislation”.
I note that the Minister says “much”, which I assume means “not all”.
Jack Straw, as Leader of the House of Commons, in 2007 made a Written Statement to the House of Commons dealing with using gender-neutral language in legislation. It was not debated, but this has become the guidance, and in many respects was good, as no longer in legislation would we see the male gender used when it should have referred to men and women.
But there are examples, such as in [this] Bill, when the word “woman” should be used rather than “person”. I give the example of the Equality Act 2010, which uses “woman”, not “person”, throughout and in all sections related to pregnancy, maternity and lactation. I refer again to the Minister’s letter:
“We recognise that a drafting convention that was originally designed to avoid denigrating women should not result in the erasure of women from our public discourse.”
As a result, the Explanatory Notes have been changed, using “Minister” instead of “person” in several places. I just wonder about that. The Minister recognised that it was not appropriate to use “person” and changed it to “Minister”, but why could it not have been changed to “woman”?
On the issue of language, at Second Reading in the Commons the Paymaster-General, Penny Mordaunt, said that she would provide further explanation in Committee but that she understood “how offensive the word ‘person’ or ‘persons’ can be in this context”.
Commenting further, she said:
“I hope that we can make some changes, if not to the legislation then to the explanatory notes, that will address some of” these “issues.”
However, she said that the Government could put the word “Minister” in the Explanatory Notes and stated that:
“Although that is still gender-neutral language, it is a much less jarring term than ‘person’.
When legislation is intended only for women and not for men, I hope that the Minister will accept that “woman” should always be used in place of “person”.
Never mind the Minister, what about Baron Adonis?
It is not clear, from Hansard or Twitter, whether Baron Adonis was still listening to the debate at this point, so we don’t know whether he heard another of his Labour colleagues, Lord Hunt of Kings Heath – hurrah, a scrotum-owner! – express remarkably similar views to the “ludicrous” and “right wing” Baroness Noakes:
A colleague of mine counted the number of times “women” was used in the Commons debate and it came to over 300, yet the Bill makes no mention of women. Instead, we heard the rather inelegant terms “person who is pregnant” and “person who has given birth to a child”, which do not seem to add to what we understand as good English.
The justification was of course Jack Straw’s change in the convention and revised guidance. However, as the noble Baroness, Lady Noakes, said, that was designed to promote the rights of women because previously, “he” was always taken to mean “he and she” in legislation. For that to be used against women in this Bill is extraordinary.
The [Minister] was very helpful in arranging a meeting last week—we are meeting him again—and I am grateful to him. He must know that the Bill in the way it is worded is indefensible. If this had been a normal Second Reading, the Minister would have observed this debate, gone back and said, “We’re going to get an amendment and we’ve got to change it.” I know we have only four days to go but I urge him to think again. He should also say that this will never be used as a future precedent in legislation. He should ensure that parliamentary counsel changes the guidance, because it is not up to the mark.
By now the debate had been going for a whole hour, and again it is unclear whether Baron Adonis was still around to hear disability campaigner and Paralympian Baroness (Tanni) Grey-Thompson – who surely knows at least as much about overcoming inequality as Baron Adonis – say:
Like others, I will raise the language used in this Bill. I support neutral language, and there are many benefits in terms of driving equality. Yet for so many we do not live in an equal society. The Equality and Human Rights Commission recently said—this relates to the pandemic—that pregnancy and maternity discrimination is the “most urgent and immediate” threat to equality. We should seek to correct this. The fact that we measure pay gap, employment gap, educational attainment and a whole set of other metrics shows us that our society is not equal.
I have been contacted by women and men who asked why the word “woman” is in the Explanatory Notes and not the Bill. I will be clear: I think the word “woman” and variations of it should be used in this Bill.
Language is important. I have always said that language is the dress of thought. As we know, the specific language used in legislation is incredibly important. It has far-reaching consequences. It is about providing rights and protection and it is our duty to find the balance in that.
I have spent most of my life fighting for inclusion for everyone that society chooses to label as different. I have spent most of my life being othered by language, attitude and a lack of physical access. Growing up, I was called handicapped or a crippled child; luckily, there has been an evolution in that language. Perhaps we need to find a new form of language to include those who feel othered, but it must not be at the expense of the word “woman”.
One thing I am certain of is that many in your Lordships’ Chamber, and those who have a different view from mine on the use of language, want to stop the denigration of women. Excluding the word “woman” from this Bill and other potential legislation does not help the cause of equality for everyone or anyone.
Similarly, we don’t know whether Baron Adonis heard Lord Pannick QC – who probably knows a tad more law than Baron Adonis – explain that:
On the language of the Bill, Parliament has often referred to the person who gives birth to a child as a woman and, indeed, a mother. Examples have already been given and I add one—Section 33(1) of the Human Fertilisation and Embryology Act 2008 defines a “mother” as:
“The woman who is carrying or has carried a child”.
However, your Lordships should recognise that the noble Baroness, Lady Jones of Moulsecoomb, was correct to point out that there are trans men, who were born female, who have given birth. One brought legal proceedings in the Court of Appeal last year. A judgment was given, in which noble Lords may be interested, by the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, in the McConnell case.
The Lord Chief Justice explained that the claimant had been registered at birth as female, but had transitioned to live in the male gender and had received a gender recognition certificate under the Gender Recognition Act 2004, stating that his gender is male. He then underwent artificial insemination, became pregnant and gave birth to a child. He brought legal proceedings complaining that the child’s birth certificate recorded him as the mother. He said that, because he had transitioned, he should be recorded as the father or as a parent. The Court of Appeal rejected his complaint and said that recording him as the mother was not a breach of his human rights.
The Lord Chief Justice said that, as a matter of common law and under the legislation governing the registration of births, the person who gave birth to a child is the mother, and the Supreme Court dismissed an application for permission to appeal. In light of that judgment, I do not think that there are any legal difficulties in referring to mothers or women in the Bill. The mother of Parliaments, in doing that, would be showing no disrespect to trans men.
Whether or not he heard any of the above, Baron Adonis was not chastened and, the following morning, he doubled-down by accusing Lord Hunt of being ‘mystifying’, and then asserting that he will not be silenced, even though he clearly knows very little about the subject on which he has so publicly pontificated, and now wishes to be non-silent about.
You’d think this was enough testosterone-fuelled idiocy for one week, but no! Later on Tuesday, another ennobled scrotum-owner, Lord Michael Cashman of Limehouse, felt compelled to join ‘the debate’, even though (by his own admission) he hadn’t attended (or possibly even listened to) any of Monday’s actual debate in the House of Lords. That evening, he tweeted: “I wasn’t present for the debate yesterday in the House of Lords but I am deeply worried by the wilful and blatant misrepresentation and defamation of trans-women. As someone who believes in equality I can never sacrifice the rights of others in order to maintain my own. Equality.”
As a member of the House of Lords, Baron Cashman has unhindered access to the Hansard record of debates, which is published overnight. So, even though he did not attend Monday’s debate, he could – and arguably should – have read the Hansard before tweeting his ‘deep worries’ about it more than 24 hours later. On Twitter, I asked Baron Cashman for a column reference. He hasn’t replied, obviously, but if and when he gets around to reading the Hansard he will find that there was no misrepresentation or defamation of trans-women – wilful or otherwise – during Monday’s debate, not least because the words ‘trans-woman’ and ‘trans-women’ were not used once by anyone. And it’s hard to be defamed if you’re not even named. Noddy and Big Ears were also not defamed during the debate.
Defamation is a big word, even for an ennobled scrotum-owner, so it may be that we will see some kind of legal move on the part of Baron Cashman that will reveal whose rights are being sacrificed, and by whom. Because I imagine that, just like Baron Adonis, Baron Cashman will not be silenced.
Oh, and – at some point – Baron Adonis blocked me on Twitter. Look at me, I’m crying.
Fortunately for the Barons, there is no need for them to worry their follicly challenged heads. The Ministerial & other Maternity Allowances Bill really is just about pregnant women, new mothers and their maternity leave. Scrotum-owners just have to get over it.
Update: So, the speech so haughtily dismissed by Baron Adonis as “ludicrous” turned out to be the pivotal one that, backed by the Baron’s own party leadership, led to an embarrassing retreat by the Government. And to this classic BBC headline.