By Claire Loneragan
I found myself looking at the Senedd’s Electoral Candidate Lists Bill this week. The Welsh Government plans to change the way members are elected in 2026 so that closed lists are supplied by each political party, and voters will vote for a list of candidates rather than individual candidates.
The consultation explains why:
On the latest Census Day, 21 March 2021, the Welsh population was made up of 51.1% women and 48.9% men. At the last Senedd election, held in May 2021, 26 women (43%) and 34 men (57%) were elected. The purpose of the Bill is to make the Senedd a more effective legislature by ensuring that it broadly reflects the gender makeup of the Welsh population.
The Equality Act 2010 section 104 allows for single-sex candidate shortlists, and although this Bill isn’t proposing a single-sex shortlist it might survive a legal challenge as, on the face of it, it is in keeping with the spirit of The Act. Levelling the playing field for women to progress their careers sounds worthy, but as ever, the devil is in the detail and nothing is quite what it seems.
Looking at the explanatory memorandum the most obvious red flag is that the word “sex” is almost entirely absent from a document that is 78 pages long. By contrast, “gender” is mentioned 182 times.
The scene is set early on:
The Expert Panel recognised that women are not a homogenous group. It noted that ‘people’s identities are multidimensional’ and acknowledged ‘the intersectionality of individuals’ identities’ within this underrepresented group.
This is activist talk for men can be women if they say they are. It tells us that the Welsh Government intends to allow males to take women’s places within these closed lists if they want but that confirmed only in the Equality Impact Assessment (of which more later) which mentions “the requirement for all candidates to complete a gender statement as to whether they are a woman or not, as part of the candidate nomination process”.
If this Bill does pass muster, it will enshrine self-ID in UK law setting a dangerous legal precedent.
So, what is the chance of this happening?
Legislative competency
The Rt Hon Elin Jones MS (the Llywydd / Senedd Presiding Officer) has questioned the legislative competencyof the Welsh Government to pass any bill on this issue, saying:
In my view, the provisions of the Senedd Cymru (Electoral Candidate Lists) Bill, introduced on 11 March 2024, would not be within the legislative competence of the Senedd because the Bill:a. relates to the reserved matters of equal opportunities, andb. modifies the law on reserved matters, namely the Equality Act 2010.
The Welsh government disagrees, but competency must be established for the Bill to progress.
The Equality Act 2010
The problems don’t end with legislative competency, though, because the Bill does not require those multidimensional identities to be supported by a Gender Recognition Certificate. In fact, it’s hopelessly vague in this regard and unlike the Equality Act 2010 does not define “woman” at all.
To progress, the Bill must be amended to define who would qualify as a woman for the purposes of these closed lists. (Yes, I know that is an insane statement). It must clarify if the women on these lists will include only female people, or whether men who are “legally women” by virtue of possessing a GRC may also be included.
Case law is not yet fixed as to the extent that a GRC makes a man into a woman for legal purposes (I know, I know … ) but the Haldane ruling made it clear that no man is legally a woman without a GRC. For Women Scotland are appealing the ruling too, which could mean that “biological women” (who we knew until recently as “women”) will be the only type of women for equality purposes. (This is so painful, isn’t it?)
Without a GRC (and perhaps after the For Women Scotland appeal, even with one) to include men in these closed lists in place of women may well contravene the Equality Act which has this to say about short lists:
These arrangements can include single-sex shortlists for election candidates, but not shortlists restricted to people with other protected characteristics.
Like so much in this area, the law has yet to be tested. But it’s likely that the inclusion of men with the protected characteristic of gender reassignment (without a GRC) would fail this test.
It also looks like sex discrimination against men who do not have the protected characteristic of gender reassignment and might find themselves replaced on one of these closed lists by another man who does claim that protected characteristic.
And what of women who identify as men? Would they count as women for the purposes of these lists if they did not have a GRC?
The Public Sector Equality Duty
The Public Sector Equality Duty (PSED) requires public bodies – including the Welsh Government – to:
Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;
Advance equality of opportunity between people who share a relevant protected characteristic and those who do not;
Foster good relations between people who share a relevant protected characteristic and those who do not.
It’s a fundamental principle of the Equality Act single-sex exceptions that any positive action is “a proportionate means of achieving a legitimate aim”. Without that, it’s plain old sex discrimination. For the Bill to satisfy the PSED the proposal must show that there is a need for more women to be elected to the Senedd, and that the Bill would not cause undue detriment to those having other protected characteristics nor damage relations between different groups.
It manages neither.
I believe that women should be fairly represented in government, and that women are every bit as competent as men. It’s important that issues faced by women but not by men – such as safety, sex based healthcare, loss of earning due to childbearing – are given due regard. But most of all, creating equality of opportunity so that the best candidates are selected is good for everyone, and the best way to achieve this is to remove impediments that hold good women back.
Adequate childcare would be a good starting point, as would transparency in decision making. The Equality Act makes sex based discrimination illegal, but that needs to be properly enforced.
The explanatory memorandum, however, seems to hark back to the 1970s for rationale:
Research shows that a gender balanced legislature can be a more effective legislaturebecause of women’s focus on different policy areas.
Statements like this smack of women being useful in some departments (Childcare? Nutrition? Families?) but not suitable for the important offices of state. It’s sexist nonsense. And it doesn’t stop there.
Women in politics have been found to:
Prioritise different policy and legislative matters
Prioritise particular types of work
Champion particular ways of working
Drive a higher calibre of candidates overall
Create role models in positions of political leadership
Increase minority representation
Decrease corruption and unethical activity.
21st Century Wales looks increasingly like a place where policy is being made based on the belief that Men are from Mars and Women are from Venus.
The Equality Impact Assessment
An Equality Impact Assessment (EIA) is usually produced to evidence that the PSED will be properly delivered. And that’s where the rubber tends to hit the road.
For any new policy (or in this case, proposed legislation) the EIA looks at its impact on each of the nine protected characteristics in the Equality Act to assess if there will be a detriment, an improvement or no impact. Where a detriment is identified, mitigations should be proposed to avoid any future discrimination claim.
Unfortunately, EIAs are rarely done well, and this one is no exception.
In the interests of brevity, I won’t dwell on how facile this comment is on the protected characteristic of age:
The average age of a Member of the Senedd is 55 … This is compared to the average (median) age of the Welsh population, which is 42 years old … These figures clearly demonstrate that the Senedd is attracting an older profile of person than that of the general population. Research suggests that there is a low number of younger Senedd members. Introducing quotas may have a positive effect on this, resulting in women of all different ages being encouraged to stand and achieving election.
For goodness’ sake, did nobody consider that under 18’s are not eligible for election, and therefore the age comparator should have been the median age of those over 18? And it’s hard to read that final sentence without feeling embarrassed for whoever wrote it.
But it gets so much worse.
Most of the protected characteristics include a “potential positive impact” likely to result from more women elected to the Senedd. Some of them might have taken as long as two or three minutes to be identified.
Take a look at the expected impact of the Bill on people having the protected characteristic of religion, belief or non-belief:
A potential positive impact in the longer term has been identified – increase in elected representation of women who are from a variety of religious backgrounds and who hold a range of beliefs.
Did anyone actually read this nonsense before it was approved for release to the general public?
Given that this proposal is intended to increase the number of women elected to the Senedd, you might wonder why the protected characteristic of gender reassignment has one of the longest assessments at 620 words, while the protected characteristic of pregnancy and maternity (potentially a reason for the lack of elected women) is dealt with in just 81 words?
In a nutshell, those having the PC of gender reassignment are considered to be at risk of loss of privacy and incurring mental health impacts through some convoluted logic relating to scrutiny of their gender which they shouldn’t be forced to share despite putting themselves forward for election as the sex which they are not.
Despite this Bill looking like an attempt to get gender self-ID onto the Welsh statute book, gender reassignment is alone in having detriments identified as a result of prioritising women. There’s just no pleasing some people.
Having said that, the inability of the assessor to correctly identify the protected characteristic of sex might have placated the perpetually aggrieved. (It’s listed as sex/gender, of course).
And in a final flourish of sexism, the assessment for the protected characteristic of sexual orientation manages to avoid using the one word that uniquely identified same-sex attracted women:
A potential positive impact in the longer term has been identified– increase in elected representation of women who are gay or bisexual.
Pass the popcorn, this is going to be fascinating viewing.