Gender self-ID candidate list for Senedd may be illegal

The Welsh Government has been warned that allowing Senedd parliamentary candidates to self-declare their gender risks legal action.

Under the Senedd Cymru (Electoral Candidate Lists) Bill, all candidates on a party’s list are required “to state either whether they are, or are not, a woman”.

But the Equality and Human Rights Commission (EHRC) said the Bill may be in breach of the Equality Act as it fails to define the term ‘woman’.

Men can stand as women

According to Senedd Research, the parliament’s information service, the new law “aims to ensure the Senedd is more representative of the gender-make up of Wales”.

Consequently, it said, where any party puts forward two or more candidates for a constituency, the Bill requires that at least 50 per cent of those on the list must be women.

In March, Jane Hutt MS – the minister responsible for the legislation – explained that “it will be up individuals to state their gender”, and that no checks would be made as to the “accuracy of any of the information provided”.

Last year, a leaked report on the ‘gender quota’ Bill defined a ‘transgender woman’ as one “who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning [their] sex to female by changing physiological or other attributes of sex”.

Equality Act

In its letter to the Welsh Government, the EHRC said: “the protected characteristic of ‘sex’ refers to a person’s legal sex, as stated on their birth certificate or as acquired through obtaining a Gender Recognition Certificate”.

The equality watchdog’s interim commissioner, John Kirkpatrick, wrote that the EHRC was “concerned that the Bill appears to base eligibility for inclusion on the quota list on candidates’ declarations of whether or not they are a woman, and this in conjunction with the term ‘gender’ may be insufficiently clear”.

He added: “In short, it may lead to the inclusion of quotas based on a person’s self-identified gender as opposed to their legal sex, and may therefore be inconsistent with the Act.”

Discrimination

Responding to the news, Maya Forstater, Executive Director of Sex Matters, urged the Senedd “to listen to the EHRC when drafting its proposals on ‘gender quotas’ for electoral candidates. As clearly stated in the Equality Act, gender self-ID is not the law of the land”.

And Miriam Cates MP, said the lack of clarity in the Bill over “what a woman is” risked the Welsh Government discriminating “against the one group they want to protect – chiefly biological women”.