Gender critical groups urge rejection of Senedd candidates Bill

Martin Shipton

Two gender critical women’s groups have urged MSs to reject a Bill they say would allow anyone to identify as a woman when standing for election to the Senedd.

A plenary debate will take place on Tuesday July 16 on the general principles of the Electoral Candidate Lists Bill, which is aimed at achieving a gender-balanced Senedd.

However, doubts have been expressed about whether the Senedd has the legal power to pass such legislation, given that equality is not a devolved policy area.

Cathy Larkman of Women’s Rights Network Wales has sent a letter to all MSs outlining her organisation’s concerns.

‘Unlawful discrimination’

She states: “We consider the Bill to be in breach of the Equality Act 2010 because it does not demonstrate how it is a proportionate means of achieving a legitimate aim. This would leave the Welsh Government open to the challenge of unlawful discrimination.

“It is unclear if the definition of ‘woman’ as used in the Bill has the same definition as the Equality Act 2010 (ie. a female of any age). If it does not, then it will not comply with UK wide equality legislation (a reserved matter) and is beyond the legislative competence of the Welsh Government.

“The lack of definitions within the Bill has been referred to several times in the evidence given at Stage 1, including in questions to the Minister proposing the Bill. There has been a consistent failure to clarify terms which critically damages the stated intentions of the Bill and renders the question of legislative competence inevitable.

“We also note that an earlier, leaked draft of this Bill made it very clear that the definition of ‘woman’ was being extended beyond that of the Equality Act. We wish to remind Senedd members that self identification is not the law in the UK and that ambiguity in definitions within the Bill as published does not overcome the inevitably of this being exploited by those making a ‘gender statement’ that does not concur with their sex.

“We note that the Equality and Human Rights Commission (EHRC), an organisation whose expertise should have been considered essential for input and advice regarding the drafting and proposing of this Bill, do not appear to have been utilised effectively, and have also voiced their own concerns

“It is clear from the consultation responses, including from those legally qualified in such matters, that we are not alone in our views regarding the lack of legislative competence for this Bill, and our concern regarding lack of definitions.

“Notably, the Reform Bill Committee share these concerns too, hence their recommendation for a Supreme Court review prior to this Bill being made law. It is our view that it would be better (and less financially prohibitive) for this deeply flawed Bill to be shelved. Members should also consider the legitimacy of Senedd elections, as well as the reputational damage for devolution and the legitimacy of the Welsh Government.

“Whilst we are pleased to note that recommendation 9 would extend the corrupt practice offence to false statements in nomination or other papers, this is not sufficiently robust to prevent the falsification of a ‘gender statement’. Without a clear definition of’ ‘woman’ within this Bill, it is not possible to know what would actually constitute falsification and it would be difficult, if not impossible, to establish that any such false statement has been made. This proposed safeguard therefore becomes meaningless in practice.

“As we and others have pointed out previously, the Equality Impact Assessment (EIA) that accompanied the Bill at stage 1 is insufficient and badly flawed. This cannot be overcome at subsequent stages of the Bill. We therefore consider that a thorough and competent EIA needs to be undertaken before this Bill progresses, in order to better inform the extent to which it will achieve its stated objectives.

“Women’s Rights Network wants to see a more equal society that ensures equal opportunities for women by removing barriers. However, this Bill attempts to enforce an equality of outcome that runs counter to the provisions of the Equality Act 2010, and potentially unlawfully tinkers with the definition of ‘woman’. For that reason, we cannot support it. We invite Senedd members to consider this to be a critically flawed Bill and to reject it.”

‘Blunt instrument’

In a similar statement, the group Merched Cymru said: “The Bill is a blunt instrument that does nothing to address the underlying systemic barriers leading to women’s under-representation ion politics.

“The failure of the Bill to define the key terms ‘woman’ and ‘gender’ or to refer to the correct protected characteristic of ‘sex’ would effectively introduce a form of self-ID toWales. This is undemocratic and would breach the Equality Act 2010.

“The Bill is not within the legislative competence of the Senedd and will inevitably be subject to a costly, reputationally damaging legal challenge.”

Supporters of trans rights believe that passing the Bill would represent a significant step forward in their campaign for true equality.