Changing the legal definition of sex to ‘biological sex’ could allow discrimination against transgender people to go unchallenged, but would provide greater clarity in law, a parliamentary debate has heard.
Yesterday (12 June), MPs debated two petitions concerning how sex is defined under the Equality Act 2010; one that sought to redefine it as biological sex, and another that opposed such a change.
Earlier this year the Equality and Human Rights Commission (EHRC) advised the government that redefining sex as biological sex would bring greater clarity in some areas of the law, but would create ambiguity and potential disadvantage in others, including equal pay and direct and indirect sex discrimination.
Opening up the debate on the legislative definition of sex, Labour MP Tonia Antoniazzi said she had spoken to the creators of both petitions and recognised the passionate views on either side.
Legal definition of sex
Equality Act could redefine ‘sex’ as ‘biological sex’
She said: “Those who want the Equality Act to stay as it is say that trans people are already using services for the opposite sex without concerns, regardless of whether they have a gender recognition certificate or not, and that not allowing them to do so would be harmful and detrimental to their human rights.
“It is therefore the responsibility of society and lawmakers to ensure that people are able to access opposite-sex facilities, services and sports.”
She added that Maya Forstater, who created the petition in favour of clarifying the law and who last year won a belief discrimination case over her gender-critical views, believed a biological sex definition would require “employers and service providers … to protect individuals against both kinds of discrimination and treat everyone with respect”, and would create two different strands of protection – one that is biological sex-based and another that covers discrimination against transgender people.
SNP MP Joanna Cherry said that not changing the wording of the Equality Act would leave the law “muddled”.
She said: “The Equality Act attempted to strike reasonable balances between the rights of people with nine different protected characteristics, including sex, sexual orientation and gender reassignment. The protected characteristic of gender reassignment is widely drawn – and rightly so. It is rightly not confined to those who have undergone medical treatment or those who have a [gender recognition certificate] (GRC). All transgender people are protected against discrimination on the grounds of gender reassignment. That is right, and there is no intention to remove that protection.”
The protected characteristic of gender reassignment is widely drawn – and rightly so.” – Joanna Cherry, SNP
Conservative MP Ranil Jayawardena, who was also in favour of redefining sex, asked: “Do we want some of the most vulnerable people in our society – children in care homes, patients in hospitals, and women in homeless shelters, rape crisis centres or even prisons – to have the dignity, safety and privacy of single-sex spaces stolen from them?
“I say no. But that is what happens if the law is ambiguous about the meaning of sex. I do not want schools, doctors, hospitals to have to lie to me or to other parents because they have been bullied or shamed into thinking that it is bigoted to use clear words.
I am worried that the debate and the direction of travel in which this can take us could lead to a roll-back of hard-won rights for the LGBT+ community and will potentially exclude more trans people.” – Luke Pollard, Labour
On the other side of the debate, Labour’s Dame Angela Eagle said she believed the move to redefine sex as purely biological would reduce rather than enhance current protections and create incoherence in legislation.
She said: “Paradoxically – perhaps even deliberately – the change would mandate exclusion and discrimination against all trans people, while worsening protections for women and girls. It would practically disapply important parts of the Gender Recognition Act and be in breach of our international human rights obligations. It would take away rights that have been enjoyed for almost 20 years by the small minority of our population who are trans.”
Labour MP Luke Pollard said that changing the definition of sex is unnecessary.
“I am worried that the debate and the direction of travel in which this can take us could lead to a roll-back of hard-won rights for the LGBT+ community and will potentially exclude more trans people from public spaces and allow discrimination to go unchallenged,” he said.
Conservative MP Angela Richardson said: “The protected characteristic of gender reassignment does not give someone the right to use opposite-sex facilities or services. It requires service providers to consider how they can properly accommodate trans people—not just trans people with a gender recognition certificate, but all trans people: all those who are covered by gender reassignment.
“In simple terms, the law needs to facilitate: that employers and service providers offer separate facilities for male and female people in situations where sex matters, like toilets, changing rooms, dormitories and so on; and that they do their level best to accommodate people who do not feel comfortable in communal facilities for their own sex, without undermining the privacy and dignity of people of the opposite sex. That usually means a third unisex option.”
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Minister for women and equalities Maria Caulfield said that the government was considering the next steps.
“As we have heard, there are many views on this issue. That is why it is important that we take the time to properly consider the policy around it and take in the legal considerations, too. There are clearly cases where people are struggling to make practical decisions on a day-by-day basis with the Act as it stands. However, we do not want to create additional unforeseen problems by changing or clarifying the Equality Act,” she said.
