The government is considering amending the Equality Act so that ‘sex’ represents ‘biological sex’, meaning trans people could be excluded from single-sex places and activities.
The Equality and Human Rights Commission has responded to a government request to advise on the “benefits or otherwise” of clarifying the meaning of “sex” in the Equality Act.
Kemi Badenoch, minister for women and equalities, wrote to EHRC chairwoman Baroness Kishwer Falkner in February asking the watchdog to consider whether the definition of sex strikes the right “balance of interests between different protected characteristics”.
Badenoch referred to two recent legal cases that have raised legitimate questions about the definition of sex in the Equality Act 2010; the Scottish Parliament’s passing of the Gender Recognition Reform (Scotland) Bill; and the section 35 order by the Scottish secretary Alistair Jack which stopped the bill becoming law. That decision was made primarily in relation to how the bill interrelates with the Equality Act 2010.
The EHRC’s initial response on the definition of sex recommends a “detailed policy and legal analysis” should the government wish to pursue the clarification.
Sex and gender
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In her 19-page response, Falkner said that since 2010, society has evolved considerably in matters relating to the protected characteristics of sex and gender reassignment.
She outlined how the Equality Act refers to trans people as “transsexuals” and uses the terms “sex” and “gender” at times interchangeably. She cited how “gender pay gap” reporting requirements are in fact a duty to report on pay differences according to “sex”.
“Moreover,” wrote Falkner, “many trans people today would not describe themselves as transitioning from one sex to the other, but rather as living with a more fluid gender identity or without reference to a binary gender identity at all. Their legal protection in the Act may be unclear as in practice trans people are unlikely to be required to provide proof of their legal status except in unusual and uncommon situations.”
She added that there is a lack of clear interpretation of the law and that the topic had become so polarised and contentious that it was inhibiting civil debate.
Successive board meetings at the EHRC have considered “various routes forward” all of which have “advantages and disadvantages for one group or another”.
“There is no straightforward balance, but we have come to the view that if ‘sex’ is defined as biological sex for the purposes of the Equality Act, this would bring greater legal clarity in eight areas,” said the EHRC. These include pregnancy and maternity, freedom of association (both for lesbians and gay men, and for men and women), positive action, occupational requirements where sex matters, single-sex services, sport, and data collection.
We have advised the UK Government that a change to the Equality Act 2010 – so that ‘sex’ means biological sex – could bring clarity in a number of areas, but potential ambiguity in others.
We have suggested that they carefully identify and consider the potential implications. https://t.co/gi5IvgXqOV
— Kishwer Falkner (@EHRCChair) April 4, 2023
But the EHRC felt the “biological sex” definition could create ambiguity and be potentially disadvantageous in three areas: in equal pay, and in both direct and indirect sex discrimination.
At present, trans women with a gender recognition certificate (GRC) can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a GRC could not. Using the biological definition would reverse this situation, transferring this right from some trans women to some trans men.
Similarly, a trans woman with a GRC can bring a claim of sex discrimination as a woman, whereas a trans man with a GRC could not. A biological definition would again reverse this situation.
Naomi Cunningham, chair of Sex Matters, which is campaigning to amend the Equality Act with the biological definition, said: “This is a measured and thoughtful analysis from the EHRC. We are confident that our proposed amendment will deliver substantial improvements in clarity and fairness, but for now we are content with the conclusion that it merits further consideration.”
LGBTQ+ charity Stonewall said the EHRC response failed “to recognise that the Equality Act 2010 has successfully supported businesses and service providers to challenge discrimination.”
It said that the EHRC was “fundamentally wrong” to imply that trans women do not experience sexism due to “biological sex”.
“We would expect the EHRC to make further reference to some of the challenges defining ‘biological’ sex, how these measures would interact with the Equality Act’s protection for people who are ‘perceived’ to hold protected characteristics.
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“This move risks opening yet another chapter in a manufactured culture war that will see little benefit to women – cis and trans alike.”
A spokesman for the Labour party said: “Clarification is a good thing. We will look closely at what’s brought forward.”
