Ministers must grasp the nettle on equality law
It needs greater clarity on sex and gender
This week the Equality and Human Rights Commission, an independent watchdog responsible for monitoring the effectiveness of equality law throughout the U.K., advised ministers to carefully consider clarifying the meaning of sex in the Equality Act.
The Equality Act prohibits discrimination against people on the basis of a list of protected characteristics. On that list are two distinct characteristics, sex and what is known as “gender reassignment”. Gender reassignment protects trans people from being discriminated against, harassed or victimised on the basis of being transgender.
The vast majority of trans people do not change their legal sex
For some time now, there has been ambiguity over the sex-based provisions within the Equality Act. Some have argued that sex, defined in the Act as whether you are a male or a female, takes on its natural meaning and corresponds with biological sex. This will allow protection in law for both biological sex and gender identity. Others have argued that sex in the Equality Act must mean legal sex, such that the small number of those trans people who have legally changed sex via a Gender Recognition Certificate (GRC) will be classed as the sex on their certificate for the purposes of the Equality Act.
It is not clear which of these is the correct statement of the law, even as recent cases in both the English and Scottish Courts have grappled with the definition of sex for the purposes of the Equality Act. The Scottish Parliament’s passing of the Gender Recognition Reform (Scotland) Bill, and the subsequent s35 Order from the UK government to block the bill, have also raised questions about how gender recognition impacts sex-based rights.
In February, the Women and Equalities minister Kemi Badenoch wrote to the EHRC asking for advice on whether it would be desirable to clarify the definition of “sex” and whether the current law “strikes an appropriate balance of interests between different protected characteristics”. The EHRC’s initial response to this request was published this week. In it the Commission recognised that “it has not been straightforward for service providers and employers to apply the law, including in areas such as sport and health services”.
This has led to an extremely toxic debate, with advocacy groups and campaigning organisations attempting to use this ambiguity to convince duty-bearers that they are under legal obligations that they are not, and that they are free from obligations that they do have.
Before going any further, it is worth noting what the concept of “legal sex” does and does not connote. In law, trans people are protected from discrimination under the gender reassignment characteristic. This does not change one’s sex. The vast majority of trans people do not change their legal sex; only those with a Gender Recognition Certificate change legal sex and then only for some purposes.
The question being asked is whether the protected characteristic of “sex” should relate to biological sex or legal sex. The EHRC concluded that if “sex” meant biological sex for the purposes of the Equality Act, it would bring greater legal clarity in several areas including:
- Pregnancy and maternity: If sex meant legal sex, any trans man (a biological female who identifies as a man) who changed legal sex to be legally a man would lose protection from being discriminated against if they became pregnant. A trans man without a GRC would still be classed as legally female and would receive these protections. This creates considerable confusion, making it difficult for employers to know what obligations they are under — because whether someone has a GRC is private information. The EHRC concluded that if sex meant biological sex, then all biological females (trans or not) who become pregnant would be protected from pregnancy discrimination. This would clarify the law and ensure protection for trans men that is currently uncertain.
- Freedom of association for lesbians and gay men: If sex means legal sex, then any person who changes legal sex also changes sexual orientation. Same-sex orientation and opposite-sex orientation within the Equality Act would also relate to whether you are attracted to a legal category, not a biological one. This would mean that a lesbian would be a legal woman who is attracted to legal women. Women who are only attracted to biological women would lose direct legal protection as that category would no longer exist under the Equality Act. For trans people, their sexual orientation in law would change depending on whether one had a GRC or not. A lesbian support group would not be permitted to confine their membership to females who are attracted to other females.
- Positive action: If sex means legal sex, then any positive measures taken to improve the position of biological women as a group could benefit trans men without GRCs, because they are legally female, but could not benefit trans men with GRCs because they are legally male. Equally, such measures may be required to benefit trans women with GRCs, who are biologically male but legally female. If sex means biological sex, these measures could apply to all biological females, regardless of their legal sex.
- Occupational Requirements: The Equality Act allows employers to restrict positions to a given sex. For example, an intimate care nurse may be required to be female. Similarly, when a patient requests to be seen by a female doctor, it is permissible to allow only female doctors to examine that patient. If sex means legal sex, then employers cannot restrict these positions on the basis of biological sex. They must include biological males who have a GRC stating they are women.
- Single sex and separate sex services: Service providers are permitted to provide service to the sexes separately or to one sex only. They can do this only if provision is justified by reference to a set of criteria set out in the Equality Act. Central to these criteria are the needs of a given sex. If sex means legal sex, it is hard to see what that category of persons may need, compared to for example the privacy needs of biological females. The EHRC concluded that a biological definition of sex would make it simpler to ensure that a women-only changing room or hospital ward were a space for biological women only.
The EHRC also warned that clarification of the law here could give rise to more ambiguities, including for trans people who seek to make equal pay claims and those seeking to make sex discrimination claims. It will become more difficult to base this on legal status or presentation and will instead be based on biological sex.
These concerns are alleviated somewhat by the protection within the Equality Act from perception-based discrimination. If you are perceived to have a protected characteristic, say you are perceived to be gay when you are not, or to be Muslim when you are not, and are discriminated against on that basis, you can still claim protection. The same is true for someone discriminated against because they are perceived to be female for example.
Defining sex does not sweep away the protections that trans people have
Finally, the EHRC also discussed the Scottish GRR Bill, supporting some of the points I have previously made about how the Bill might affect the operation of the Equality Act if sex means legal sex. If the UK government chooses to act on this advice and clarify that sex means biological sex in the Equality Act, that will significantly weaken the case for another s35 Order to block a future Gender Recognition Reform Bill, should the Scottish government seek to introduce it again. This doesn’t mean that a legal challenge to the Order already made is more likely to succeed, but it would mean that future gender reform would operate on the presumption that it would not affect UK equality law.
No matter how a group is defined, it will require the law to include some but not others. If sex means legal sex, then trans men with GRCs lose all status and protection as women whilst biological women as a group lose the recognition that their group matters for equality law.
If sex means biological sex, then trans women with GRCs don’t gain status or protection as women. However, they will retain protection and recognition as trans people under the gender reassignment characteristic.
There is no way to avoid grasping this nettle. The law needs definitions if it is to work. Politicians can obfuscate about what a woman is, but the law can’t if it wishes to protect women’s rights. Defining sex does not sweep away the protections that trans people have under the protected characteristic of gender reassignment.
It has been said time and again that women’s rights and trans rights are in no conflict. Many lawyers have cautioned that this depends entirely on how we define both groups and what rights we are talking about. When the UKs independent equality watchdog writes to clarify that equality law protects both women and trans people, however, prominent advocacy groups such as Mermaids have claimed that they are “seeking to strip trans people’s rights”.
The EHRC is charged with advancing the equality rights of all protected groups. Trans people are protected from discrimination, victimisation and harassment under the protected characteristic of gender reassignment. Clarifying that the protected characteristic of sex covers biological sex, whilst gender reassignment covers gender, does not remove those rights from trans people.
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