Self-identification, a Returning Officer’s Perspective

There was a constitutional amendment on the agenda for the recent York conference (item F15 on the agenda) that sought to amend the rules for ensuring gender diversity on the party’s committees (clause 2.5 of the constitution). The part of the amendment that has attracted most attention was the removal of non-binary people from the text, but the other proposed change was much more concerning from a practical point of view as a returning officer. This was the removal of the words “self-identification” as the means of determining whether a candidate is a man or a woman.

I’ve conducted internal elections within the party for more than twenty years for a variety of bodies – affiliated organisations, state parties, local parties. I’ve never conducted federal elections, but the vast majority of bodies within the party incorporate the federal rules on diversity into their own elections so I’m very familiar with how these rules are operated in practice.

On the most basic practical level, each candidate submits a nomination form, either on paper or online, and there are tick boxes on the form for each of the four diversity criteria, that is sex/gender, ethnicity, disability and LGBT+. The way that the sex/gender rules are implemented in practice is that there are three boxes, “man”, “woman” and “non-binary”. If you tick one then you are treated as being in that category for the purposes of applying the rules in clause 2.5. If you don’t tick any or you tick more than one, then, rather than invalidating your nomination, you are treated as being of a fourth category (ie of unspecified gender), where you would always be disadvantaged by the application of the rules. That is: there must be 40% women/non-binary, and 40% men/non-binary; you would have to get into the other 20% if you didn’t validly designate yourself.

If we cannot trust members’ self-identification, then we would need to have some sort of validation process for their sex/gender, and would have to treat anyone who didn’t submit suitable validation as being of the fourth category (or, if non-binary were removed from the rules, the third category) of those of unspecified sex/gender. That would be a substantial increase in the amount of paperwork required on the part of returning officers. All of the returning officers in the party do so as volunteers. If you ask anyone trying to recruit a returning officer for an internal election then they will tell you how few of us there are and how busy we tend to be. Adding substantially to the work required by telling us not to trust candidates to correctly tell us what sex/gender they are and to compel them to produce identification documents would make it even harder for party bodies to recruit returning officers. I suspect that many party bodies would be forced   to make up their own rules rather than just adopting the federal ones – not necessarily out of a principled disagreement with the federal rules, but out of a practical need to reduce the work and therefore make it possible to get a returning officer.

Aside from the practical problems of implementing diversity requirements on any basis other than self-identification, there is also the fact that many people in this country – above all the most disadvantaged, those that we are creating diversity requirements to protect – do not have suitable forms of identification, as has come to light with the government’s new requirement to carry ID in order to vote. If we require the production of evidence, then we inevitably exclude numbers of people from being candidates in our internal elections.

* Richard Gadsden is a Lib Dem member from Manchester and most recently the Acting Returning Officer for the Liberal Democrats in England.

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12 Comments

  • Tristan Ward 27th Mar '23 - 5:29pm

    There is an interesting article on This Kind of Thing (as Lord Bonkers would say) in the Labour party here|: https://www.theguardian.com/commentisfree/2023/mar/27/labour-lose-election-three-hurdles-working-class-immigration

    but there are important implications for our party too.

  • Mel Borthwaite 27th Mar '23 - 5:39pm

    My observation is that – as this article illustrates – sex and gender are often conflated when, under the 2010 Equality Act, ‘sex’ and ‘gender reassignment’ are different protected characteristics. (And, for the record, stating this fact does not imply any wish to deny anyone of their rights.) so there are choices: requiring members to reveal their sex would allow for equality monitoring of that protected characteristic, but trans members may feel excluded by being forced to answer such a question; requiring members to reveal their gender identity would allow everyone to feel included, but would not allow for equality monitoring based on sex or based on gender reassignment/trans status; not requiring members to reveal their sex and/or their gender identity would also include everyone but would also not allow for equality monitoring of either protected characteristic. Maybe the time has come to not have any minimum quota based on sex, gender identity or any other protected characteristic and just elect people based on what they stand for.

  • Thanks Richard for your sensible and reasonable contribution. Of course we use self-ID for gender and other characteristics (eg race); to use anything else would be utterly abhorrent. As liberals we are against a “papers, please” ID card culture.

  • Richard Gadsden Richard Gadsden 27th Mar '23 - 7:09pm

    I think that Mel makes the mistake of assuming that the Liberal Democrats want to follow the Equality Act’s definitions. We have had these clauses in our constitution for much longer than the Equality Act existed, and the idea that the Equality Act could change the meaning of our constitution is obviously nonsensical.

    The rules are there, not for compliance with some legal requirement to protect certain characteristics, but because the Liberal Democrats “reject all prejudice and discrimination based upon race, ethnicity, caste, heritage, class, religion or belief, age, disability, sex, gender or sexual orientation and oppose all forms of entrenched privilege and inequality.” (from the Preamble).

    We are not obliged to follow the Equality Act’s characteristics, nor their definitions. And we don’t.

  • Simon McGrath 28th Mar '23 - 9:25am

    Richard’s comments about the Equality Act are a bit confusing. The Party is bound by the Equality Act in the way it carries out its election: it is the clauses in that Act that gives us the ability to say that we can set quotas in federal cttee elections -otherwise it would be unlawful discrimination. It also seems odd to say that we have rules allowing discrimination on the basis of race etc by quoting the preamble which specifically rejects such discrimination.

  • Richard’s interpretation, that removing the words “shall self-identify as” from Article 2.5 would require returning officers in internal elections to somehow verify the sex of all candidates, surprises me.

    We generally trust members not to lie about their characteristics, and that’s implicitly assumed throughout the constitution.

    Article 2.6 covers minimum quotas for people from “underrepresented ethnic backgrounds”, “disabled people”, and “under-represented sexual orientations and gender identities, including trans and non-binary identities.”

    None of these refer to self-identification, but as far as I’m aware we’ve never required a candidate to provide certificates or any other evidence of their ethnic background, disability, sexual orientation or gender identity.

    I think that’s a pretty good policy, and nothing in the amendment would have changed it.

  • Zoe Hollowood 28th Mar '23 - 1:35pm

    “We have had these clauses in our constitution for much longer than the Equality Act existed.” The quotas in 2.5 and 2.6 were voted into the constitution in 2016. The Equality Act was signed into law in 2010.

  • Judith Bailey 28th Mar '23 - 1:42pm

    In his reply to Mel Borthwaite, Richard Gadsden comes close to saying that the Party is not subject to equality law, which is quite concerning for a returning officer. If the constitution leads us to discriminate against a group which is protected by the law, then the fact that we’ve been doing it for ages is not actually a defence.

    The Equality Act did not suddenly introduce the concept of equality law in 2010, It simply brought together existing provisions, developed since the 1975 Sex Discrimination Act. If our constitution already violated it, then we were already in trouble.

    The law allows positive action in favour of people with certain protected characteristics, but only if it can be shown that they (eg, women or BAME people) are under-represented, because it allows discrimination against the over-represented group (eg men or white people). If you prioritise a characteristic that is not defined in law, you must not indirectly discriminate against a protected characteristic.

    A recent legal judgment made it clear that it is not lawful to redefine a protected characteristic (in that case, women) to include a different group in a quota, though a separate quota for that group might be justified.

    It is also confusing to have a group with a single characteristic included on both sides of a quota which refers to sex. As a returning officer, how would Richard Gadsden determine whether a particular non- binary candidate should be elected under the quota for women or that for men?

  • Mark Johnston 29th Mar '23 - 3:09pm

    Like it or not, UK public law has precedence. Thus, as our federal constitution itself states, the Equality Act has precedence over any rule or decision the party takes. I find it bizarre that anyone could argue differently. Imagine if e.g. a party officer argued that the RPA, the PPERA or GDPR could be disregarded?

  • Richard Hopkins 29th Mar '23 - 5:49pm

    Surely Andrew Hickey does not believe that the protected characteristics defined within the Equality Act are irrelevant. As the act treats sex and gender as different, should it not be uncontroversial that those working within the law, do so also. It seems rather a leap to claim that “nobody in practice does.”

    Of course the protected characteristic of gender reassignment permits self-identification, as “proposing to undergo … a process … for the purpose of reassigning the person’s sex …,” is all that is required. One’s sex, however, is determined on one’s birth certificate. It would be false representation to report it differently.

    Andrew’s suggestion that a binary choice would be the only one open to a returning officer, was surely made in jest. Yes, our liberal instinct is to avoid excessive and intrusive bureaucracy. Surely a legally binding affirmation as to one’s registered sex, when applying to be the candidate in an election, is not too much to ask? Remember that that status may well displace another candidate. Is it not within that other person’s right to know they have been displaced for the correct reason?

    I appreciate that some will still see this as intrusive, although it is an inevitable consequence of having a sex-based quota system which is Equality Act compliant. I also cannot see how a quota for people with “under-represented sexual orientations and gender identities, including trans and non-binary identities,” can be managed without being similarly intrusive. Ultimately, elections must be transparent to be valid.

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