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Kishwer Falkner: Is life now so brittle that to ask questions is to be deemed to be controversial?

Kishwer Falkner: Is life now so brittle that to ask questions is to be deemed to be controversial?

As a professional woman in her early twenties, Kishwer Falkner (aka Baroness Falkner of Margravine) was stopped at customs in Saudi Arabia where she was detained and strip-searched for simply carrying a book. 

The book, Darkness at Noon by Arthur Koestler, was about the failure of communism and, unbeknown to her was, at the time, on some Saudi government haram red list. The offending publication, which was nestled in her handbag, was seized and she was taken by guards and subject to an interrogation and an intimate body search.

It was, she says, degrading and designed to make her feel disempowered.

But despite the humiliating circumstances, the irony of being stopped in the oil-rich country, with its burgeoning economy so fundamentally rooted in capitalism, for carrying a book written by a former communist that was actually arguing against, rather than for, communism, was not lost on Falkner.

And she says that that period in her life, of living and working in the Middle East where her rights and freedoms of expression were so restricted, has been seminal in helping to shape her into the fierce protector she says she is, of equalities and human rights. 

This was the early 1970s, a period characterised by the ebbs and flows of détente in terms of geopolitical tensions and for someone like Falkner, whose heart lay in the West, with democracy and freedom of expression, the political differences and restrictions of living in a society which did not feel free were acute.

Speaking in the House of Lords where she sits as a cross-bencher, on the very day in December last year that 73 years before the Universal Declaration of Human Rights was adopted in Paris, she reminded her fellow peers that in order to uphold the freedoms that we all now enjoy in the West, we must also accept the proposition that the struggle to keep them is for us all to maintain.

“As I grew up, I lived in several countries,” she told the House. “What united them was that they were all authoritarian and all socially conservative. All were politically repressive in varying degrees, but the combination of the two, if you were a woman, was, at minimum, stultifying and at worst, led to a life lived in social and political ostracism. That loss of voice eventually snuffed out your fundamental autonomy. You retreated into family, religious sect and tribe, with a narrow space to express yourself that got narrower and narrower. 

“For those of us who have been lucky enough to make it to democracies – I think I speak for many who arrive on our shores today – the allure of a democracy is palpable. It has meaning beyond knowing that you can vote; it is expressed most tangibly in the ability to think what one wants and to express that as one wishes, with bounds, but with few bounds. These two, the freedom to think and free speech, are inexorably bound together. One cannot have the one in the absence of the other.

“For me, a thriving democracy is one where contestation is rife and vigorous debate allows us to change our minds, to be open to contrary perspectives and, indeed, to disagree – to disagree well.”

Falkner returns repeatedly to that latter point during our interview which follows a week in which she, and the EHRC, have fallen victim to the toxic debate surrounding the reform of the Gender Recognition Act. And it clearly pains her.

The proposed reforms to the GRA in Scotland have sparked a lengthy and ever more polarised debate about whether changes – which would, among other things, remove the requirement for transgender people to have a medical diagnosis of gender dysphoria before being able to obtain a Gender Recognition Certificate and legally change their sex – could impact on women’s rights to single-sex spaces as set out in the Equality Act. 

The Scottish Government is adamant that the proposals will make no change to anyone other than to trans people and indeed, the First Minister has said, unequivocally, that concerns voiced by some women are “not valid”.

With the proposed legislation planned to be introduced to parliament later this month, the EHRC, which is the UK’s statutory regulator on equalities legislation, wrote to the Scottish Government last month expressing concern about the planned bill and calling for a pause.
The EHRC said “more detailed consideration” was needed before the Scottish Government made any attempt to overhaul the 2004 legislation which currently covers the issue.

I’m a Muslim, ethnic minority, woman, of a certain age. I’ve lived in this country and across the western world for some 44 years – in other words, countries where I was a minority. I’ve had the privilege of living in several European countries and the US in this period. The idea that I wouldn’t have experienced racism, sexism, or religious-based discrimination myself is astonishing

The body cited concerns about “extending the ability to change legal sex from a small defined group… to a wider group who identify as the opposite gender at a given point”. It warned there could be consequences for data collection, participation and drug testing in competitive sport, the criminal justice system and in other areas. And added that the “established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people,” provided the correct balance.  

Campaigners for change, including Stonewall and the Trans Alliance, reacted furiously to the call for any delay and they were joined in that view by ministers including the Green MSP Patrick Harvie, who described the EHRC of having abandoned LGBT+ people. The First Minister, meanwhile, told MSPs that she “noted” the letter from the EHRC but said this was also a departure from the equalities body’s previous position which had been more supportive.
She also said she was “slightly concerned” at some mischaracterising of the bill. 

Falkner has clearly been rocked by the furore and, in particular, the attempts to smear her personally as well as the EHRC. She admits there have been days when she has just wanted to “pull the duvet over my head” until it all goes away but tells me “escape is not the answer” and she remains focused “on delivering fairly and in a balanced way for all the people in our country across all the protected characteristics”.

The Convent of Jesus and Mary in the foothills of the Himalayas, where Falkner was schooled

She says that while the EHRC remains generally supportive of the Scottish Government’s plans, its current position reflects changes that have happened in the time that has passed between the original consultation in 2018 and issues raised by recent legal cases around sex and gender, questions about accuracy of data collection, and even what the legal definition of ‘sex’ and ‘gender’ might be.

She says she shares the First Minister’s commitment to making life better for trans people but believes that people must be able to question and debate to reach good conclusions and says that in this conversation, people are not only being silenced but they are also being wrongly pigeonholed as being on sides.

“I’m not clear how you can be asked as to whether you’re anti or pro anything, when all you ask for is more detailed consideration. That is not a controversial thing. Is life now so brittle, that to ask questions is now, of itself, deemed to be controversial? We are firmly committed, in fact we have a duty, as the Equality and Human Rights Commission to promote the human rights of trans people and to prevent them from discrimination and harassment and I’ve referred already to the Scottish Human Rights Commission, but this is also a part of equality law which sits with us.

“And we have enormous regard for the Scottish Government’s commitment to improve a lot of things for trans people, like gender identity services in Scotland, where they’re putting their money where their mouth is, which we’ve called for in England, repeatedly. 

“We understand that there are strong views here, but I think we all want to get to the same end, and the end is to make life easier for trans people to live in the identity that they feel so strongly committed to. That’s the end that I want to see too. It’s just all we ask for, in getting to that end, is for the Scottish Government to navigate the road a little bit more carefully, because you don’t improve trans people’s rights by damaging another group’s rights. And potentially, that can happen in this regard.

“I guess I’m fortunate in sharing something with the First Minister, which is we both operate in the public and political domain. I’m a parliamentarian. I don’t describe myself as a politician, I describe myself as a parliamentarian, and in my daily life for 18 years I’ve witnessed political debates and I’m certain that sometimes, people say something that has unintended interpretations and I would like to think that the First Minister certainly didn’t intend to infer that she would dismiss the views of 51 per cent of the population as not valid. I’m certain about that. And I accept, in good faith, her remarks that she’s enormously committed to the rights of women as well.

“People shouldn’t be pushed into polarised positions which are erroneous and personally damaging because there are grey areas, there is doubt, and questioning is the sheet anchor of a healthy and fair democracy, which is why the freedom of expression is such an important and really profound part of human rights and of the Universal Declaration of Human Rights. So yes, despite how this has felt, I will be as robust in protecting people’s right to speak in the future as I always have been, because that is who I am.”

As a child growing up in Pakistan, Kishwer Falkner would scour The Economist that was delivered to her family home every week for news which would help her compete in a Sunday lunchtime game of current affairs devised by her parents to make geopolitics fun for all the family in which each of the siblings would choose an article to talk about.

Falkner, the youngest of five children, four girls and a boy, always chose news from the ‘Britain’ section of the current affairs magazine and was an enthusiastic participant in these “animated” lunchtime chats. This, she says, is where she honed her ability to argue, reason and find consensus. And says, in a country riven by conflict, matters of war, peace, freedom and democracy dominated these family discussions.

“These were, on the face of it, just fun, lively conversations over family lunch, although we were all quite competitive,” says Falkner. “I remember, I would always go to the Britain section in The Economist for my story of the week to raise because, you know, we were a colonial country and I remember having this impression when I was a child that Britain was very much part of who we were. But, you know, Pakistan was not only not a democracy, and it’s a very poor country still, but it was an even poorer country when I was growing up.

“Work was the only way out of poverty but work wasn’t always available and there were high levels of unemployment, poverty and destitution. Conditions were dire for many people, through no fault of their own. That was hard to see. And I would read articles in The Economist on the welfare state, covering benefit payments and things like that, and I would be astonished that a country could have a safety net for its people, an economic safety net, where even if you didn’t work, you would be helped. ‘Mummy,’ I would say, ‘you can get money, people give you money as a right, even if you can’t work.’

“For me, this was an entire revelation. A good thing. A wonderful thing which had fairness at its heart. And so, for me, public service and coming into public service, as I have done, was almost predetermined from such an early age as that.”

I’m not clear how you can be asked as to whether you’re anti or pro anything, when all you ask for is more detailed consideration. That is not a controversial thing. Is life now so brittle, that to ask questions is now, of itself, deemed to be controversial?

Falkner describes the family as “a very liberal household” where freedom of thought was encouraged. She talks about books by Plato and Bertrand Russell on the bookshelves. Both her parents were university educated which was unusual at the time in Pakistan. Her father was a military man who was seconded into the intelligence services and rose to be director of intelligence training which, for obvious reasons, was the one area that was not openly discussed much at home. And her mother, who she says was a fierce feminist and “an extraordinary role model”, was a journalist who worked as a television producer. 

Her parents separated and later divorced which, she says, was very hard in a culture where that was still very much frowned upon and in a Muslim family of four girls in which her brother was referred to as “the prince”, the mantra from their mother was that you must always earn your own money, no matter who you married, because financial independence was seen as the key to freedom. This was underscored by the importance of education. 

Falkner’s early education was at school in the foothills of the Himalayas in a garrison town called Murree where her father ran the military intelligence training school. The school, the Convent of Jesus and Mary, was a privately run convent where the education was considered outstanding and where there was no attempt to convert Muslims. Benazir Bhutto was a prefect at the time and Falkner, who used to run errands for her or fetch her books, remembers the future prime minister as being “very charismatic”, even at that stage. 

All four sisters left Pakistan, pulled by the notion of democracy and freedom, and while her sisters went to America to study, Falkner initially left home at 18 for a job in Saudi Arabia where the country was fast becoming rich on oil and the fact that she could speak good English was commercially useful to Middle Eastern-owned companies that needed help navigating western bureaucracies. That led to jobs in France, the US and then to the UK where she studied international relations at the London School of Economics before studying for a postgraduate degree in International Relations and European Studies at the University of Kent.

She joined the Liberal Democrats in the mid-1980s and worked at HQ in various policy roles, always focused on international relations. She stood, unsuccessfully, for Westminster and for the EU and was made a peer in 2004. She has worked on various security issues and was a member of Tony Blair’s taskforce on Muslim extremism set up in the wake of the 7/7 bombings in 2005. In December 2020, after a formal scrutiny process, she was appointed chair of the EHRC along with a number of other new commissioners. 

The organisation found itself almost immediately embroiled in the row over transgender rights when Falkner said, in a newspaper interview, that women must have the right to question transgender identity without being abused, stigmatised or risk losing their job. This followed a very high-profile case focused on that central issue and which the EHRC backed. Then followed the news that the organisation had quit the Stonewall Diversity Champion Scheme, citing that it “did not constitute best value for money”.

And in October of last year, Falkner’s predecessor, David Isaac, who had held the post from 2016 and had previously been a chair of Stonewall, accused the EHRC of having become politicised and of following a Tory agenda which pitched the rights of ethnic minorities against those of white working class people. I ask Falkner what she feels about the criticism she has received, particularly that she might pitch one minority against another.

“In recent days, I’ve been reminded of The Merchant of Venice, ‘When you prick us, do we not bleed?’ I think it would be a particularly unreflective person if it didn’t penetrate at some level but I’ve spent 30 years of my life working in this equalities space, and I’m here today because I believe in equality and human rights. I’m a professional, I have to remain focused on the organisation. And the most important thing in the organisation is delivering fairly and in a balanced way, for all the people of our country across all the protected characteristics.

Falkner with late Lib Dem leader Charles Kennedy in 2001 | Credit: Alamy

“I am sitting here before you representing a number of the protected characteristics. I’m a Muslim, ethnic minority, woman, of a certain age. I’ve lived in this country and across the western world for some 44 years – in other words, countries where I was a minority. I’ve had the privilege of living in several European countries and the US in this period. The idea that I wouldn’t have experienced racism, sexism, or religious-based discrimination myself is astonishing.

“And sometimes when societies feel very brittle, day in and day out, I have to say this is why I’m so enormously thankful and committed to defending the Equality Act. Because it is in the United Kingdom, where we have pieces of race discrimination legislation on our statute books starting from 1959, and then onwards into the 1970s, after which there were a large number of Acts, and the United Kingdom has become a much better place to be non-white than when I arrived here in 1976.  

“That is not to say that people with my skin colour do not experience discrimination, day in and day out in certain areas, they still do, because the law is a blunt tool to change people’s behaviour. And prejudice prevails, as we unhappily know, on the football ground, on the cricket ground, in employment, in decisions taken by the police, by our public authorities, it’s around us.

“Discrimination prevails and I would love for us to no longer have a job, I would love for the Equality and Human Rights Commission to be abolished, because there would be no need to tackle race discrimination or any of the other discriminations but alas, that’s not where we find ourselves and accusations to suggest that I speak for anyone other than fulfilling my statutory role around equalities is one that I take very seriously and I reflect on those things. But it is not true and it doesn’t help me do my job. It’s as simple as that.

“Of course I have found this painful. But when I entered the political world 40 years ago, and when I entered parliament 18 years ago, I knew there were going to be times when being in political life is not comfortable but I’m fairly robust. I’m fairly resilient. And I think having deep-seated values, a belief in the fundamentals of equality, and loving friends and family, makes a huge difference. And I’m blessed to have both.”

Are you a transphobe?

“I don’t know what the meaning of that word is.”

It gets bandied around a lot at the moment, though, doesn’t it?

“Too much…too much.”  

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