Three 'Practical Difficulties' Of Policing Female Quotas On Boards
The UK's Supreme Court has ruled that the interpretation of sex, and therefore sex discrimination, in the Equality Act must be based on biological determination at birth. This is the conclusion of a long campaign by For Women Scotland (FWS), who contested the Scottish Government's position that transgender women could hold positions on public boards designated for women as part of a quota policy to increase representation.
The Independent reported FWS Director Trina Budge's comment from the November hearing: 'Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50 per cent men, and 50 per cent men with certificates, yet still lawfully meet the targets for female representation.' The ruling stated that those administering quotas, as well as hosts of single-sex spaces such as changing rooms, hostels and medical services would face 'practical difficulties' unless the nature of a woman is specified in this way. Let's consider the practical difficulties that they face following the ruling.
Firstly, presumably under this ruling we now have a situation where public boards could conceivably comprise of 50 per cent cis men and 50 per cent trans men. I don't think this is the intended outcome of the campaigners, and one might argue it is unlikely. However, it is also unlikely that transwomen should suddenly flock to board level careers in sufficient numbers to stymie the entry of cis women. With transgender prevalence at fewer than one percent of the population, it is hardly a stampede in either direction. Should board appointments permit this flipping of the access to female quotas from trans women to trans men, or should all transgender people be banned from being counted in quotas on boards? This leaves room for transgender claims of discrimination, since being transgender is still a protected category within the Equality Act.
Secondly, the placing of a burden of proof is complex and intrusive. Will we now expect all women with masculine features to prove they have been biologically women since birth? Collecting evidence for this is difficult and presumably contrary to privacy and confidentiality laws. We could ask for a birth certificate perhaps, except that around 8000 people in the UK have a Gender Recognition Certificate and these people will have female written on their birth certificates. So, what's next – genetic testing? Inspection of bodies? Forcing people by law to vocally or visually self-identify as transgender to officials in public spaces? Now there's a slippery slope we haven't seen for nearly a hundred years.
Lastly, outside the context of public boards, this ruling has a cascade effect on hospitals, hostels, public changing rooms and more. Asking existing staff to begin policing entry is not practical and rife with potential difficulties for transgender people and indeed anyone who does is not gender conforming in their appearance. This is a level of everyday friction that no one needs – patients on wards arguing about whether the person in the bed next to them should be there or not. Our hospitals and public spaces do not need another complication to their administration.
We already have safeguarding policies and risk assessments for edge cases where we need to protect against gender-based violence in hostels and prisons - we need the staff in post to action them more than we need to enforce exclusion of all transgender people.
Again, are we going to place trans men in all female wards? Gender appearance is not clear cut, so unless we are forcing people to self-identify, it leaves room for interpretation. And the hostile environment we have created will lead to more people publicly challenging gender participation. Perhaps the experience of Imane Khelif, who was viciously trolled and attacked for her masculine features during the Olympics despite being a cisgendered woman, is a harbinger of the discourse we can expect at our local swimming baths in the future.
Any limit to career progression is a block on talent. Our public boards could not be more in need of the diverse thought, challenge to the status quo and creative problem solving that comes when you run an inclusive team.
In 2011 the FTSE started documenting the prevalence of women on boards. It was a shambolic 9.5 per cent of the FTSE 350 Boards, and has today risen to 43.54 per cent. Such swift progress is admirable, and hardly shows that the rise of female leaders was being hampered. I note that the men will not have to prove their manhood to be appointed to boards. Policing the boundaries of women, and not men, is a further embedding of barriers to success for all women.
The practicalities of applying this ruling will no doubt be the topic of much discussion in the public domain for weeks to come, but fewer difficulties? With all due respect to the Justices, this is doubtful.
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