Response to Victor Madigral-Borloz of the UN

The response of Fair Cop to the call for inputs* by the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity

On 24^th February 2023, the UN Independent Expert Victor Madigral-Borloz called for ‘inputs’ from ‘stakeholders’ to inform his visit to the UK from 24^th April – 5 May 2023.

Fair Cop is a group of gender-critical lawyers, police officers, writers & professionals dedicated to upholding Articles 8-11 ECHR & removing politics from policing. It was founded in 2019. This response has been authored by Fair Cop member Sarah Phillimore, with the approval of the other members.

It is beyond the scope of this brief note to cover all areas of concern about gender identity – such as the concern over the lack of evidence base to support medical transition of children and the chilling impact on academic freedom of a historic policy of ‘no debate’. There is even a lack of any clear definition of what is meant by ‘gender identity’, other than some kind of reliance on sex-based stereotypes.

We focus here on those issues closest to our campaigning base; the impact that ‘gender identity’ and a general refusal to allow any criticism of challenge, has had on policing in the UK and the protection of rights pursuant to Articles 9 and 10 of the ECHR.

However, we ask you to consider and be aware that the confluence of all these concerns, and the failure until relatively recently of public bodies or the courts to take them seriously, have in our view made significant contribution to the current polarised toxicity of much of the attempts of discussion in this area. We consider that this is harmful to the human rights and dignity of everyone. Efforts to encourage tolerant, transparent, and honest debate are urgently needed. We hope your visit can be part of this, and not simply another in a long line of partisan attempts to compel agreement with an ideological position that many reject for serious and genuine reasons.

We assert that continued reference to ‘gender critical’ men and women as simply ‘bigots’ and the reframing of their lawful reliance on their existing legal rights as an ‘attack’ on trans people can only increase and cement divisions in societies and damage efforts to promote increasing acceptance for those who wish to express a ‘gender identity’.

The request set out several areas where information would be useful. We consider that we are competent to comment on the following areas:

Information on policies, programmes, and the legal framework pertaining to protection against violence and discrimination based on sexual orientation and gender identity, including any protection gaps that may exist.

We note the continued ‘teaming’ of sexual orientation and gender identity and consider that this is incoherent. These two characteristics are fundamentally different and have different consequences. Fair Cop rejects the continued pursuit of ‘hate crimes’ based on subjective reporting regarding ‘monitored strands’ for all the reasons that were set out in the Court of Appeal decision in Miller in 2021.

However, if we are stuck with this approach, then we question why ‘sex’ has not been added as a ‘monitored strand’ – the reason seems to be that misogyny is so prevalent that the police would simply be overwhelmed. We do not consider that protecting ‘gender’ in substitution for sex allows for the effective protection of women and girls, considering the overwhelming statistical evidence of the risk posed by men. We do not agree that a man can ‘change sex’ by his declaration alone and a man with a female ‘gender identity’ remains male.

Priority issues, concerns, and/or situations that may warrant the attention of the Independent Expert during his visit.

Fair Cop have for many years now, been concerned by the growing violence of the rhetoric directed against women who hold the protected belief that sex is real and it matters.

This is coupled with the apparent failure of policing on numerous occasions to protect women from gatherings of abusive and violent men, often in full face coverings, and thus presents a serious and increasing risk to women’s safety.

We consider that this is the direct consequence of long-standing approval from a variety of organisations and individuals, of discrimination against women who believed that sex was real, and it matters. It was not until the decision of the Employment Appeal Tribunal in the case of Forstater that we could be reassured our belief was worthy of respect in a democratic society.

Since Miller and Forstater we estimate that individual citizens of the UK have raised more than £3 million via crowdfunding to bring legal actions to secure the most basic of human rights in the arena of sex v gender. We consider that this is a shocking failure of any purported democracy and that this failure of both law and policing can be directly linked to the continuing efforts of those who promote ‘gender identity’ as more important than (or even in substitution for) sex. There has been a serious failure to consider properly – or at all – the impact of the tension between sex and gender and the risks this creates for women’s rights, safety, and dignity.

Suggestions of civil society actors and/or Government institutions or officials in the UK, or any of its four constituent nations, with whom to meet during the country visit.

We think you would benefit from meeting directly with the following:

• The Edinburgh-based policy analysis Murray, Blackburn MacKenzie, whose 2019 report ‘Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland’ is a very helpful investigation of what we fear has gone so wrong in Scotland.
• The campaigning groups Sex Matters, Fair Play for Women, For Women Scotland, and Dr Kate Coleman of Keep Prisons Single Sex, who have all contributed to significant court judgments in this area.
• The academic Michael Foran who has written extensively on the use of the section 35 procedure.
• The Equality and Human Rights Commission which has called for a balanced legal framework in this area, that protects everybody.

In addition, we would be grateful if you would consider further

• our joint report with the Women’s Rights Network in January 2022 ‘Transphobia as a security concern: the dangers of conflating political speech with violent insurrection’.
• Ms Phillimore’s open letter to the Council of Europe published on 12^th February 2022.

These two documents will provide you with further detailed analysis of our concerns. We would also be happy to meet in person for direct discussion if this is of assistance.

We conclude by noting that Mr Madrigal-Borloz offers a summary of his fundamental position to be “legal recognition of gender identity is a human right & self-identification is the appropriate standard for it.”

We do not seek to deny the human rights of or unlawfully discriminate against any person based on sexuality or gender identity. However, we are concerned that allowing any man to be treated as a woman on his declaration alone, is risking harm to the safety and dignity of women and girls who share the protected characteristic of sex.

Our very serious concerns have recently been put into sharp focus by the decision of the UK Government to exercise powers pursuant to section 35 of the Scotland Act 1998, to prevent the Scottish Government enacting legislation which would have significantly widened the cohort of people who would obtain a Gender Recognition Certificate and removed many of the safeguards in the current system.  See the statement of reasons here https://www.gov.uk/government/publications/statement-of-reasons-related-to-the-use-of-section-35-of-the-scotland-act-1998

If Mr Madigral-Borloz wishes to pursue his stated aim of securing ‘Self ID’ as how gender identity is protected, we think it is incumbent on him to be clear as to what this means for the safety and dignity of women and girls and how they will be protected.

We think the fundamental question he must answer is this – if the convicted Scottish rapist Adam Graham is not considered by various Scottish Parliamentarians to be a woman, despite his assertions that he is, what is or should be the test applied to determine Mr Graham’s gender identity?

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* OHCHR | Call for inputs by the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI) in advance of country visit to the United Kingdom of Great Britain and Northern Ireland (24 April to 5 May 2023)