THE UK Government could seek to change the legal definition of sex in the Equality Act.
Minister for Women and Equalities Kemi Badenoch asked the Equalities and Human Rights Commission (EHRC) to look at how the legislation around the legal definition of “woman” operates following the Scottish Parliament’s passing of the Gender Recognition Reform Bill.
During the marathon debate of the legislation in Holyrood last year, Scottish Government ministers said that there was minimal interaction between the proposed changes to gender recognition and the Equality Act 2010.
But Badenoch has said she now considering changing the law to create a legal distinction between those assigned female at birth and those who have transitioned.
Writing to Baroness Falkner, the chairwoman of the EHRC, Badenoch asked for her “considered advice of the benefits or otherwise of an amendment to the 2010 Act on the current definition of 'sex'”
While noting that “this area has become so polarised and contentious that it is inhibiting debate”, Falkner stated that the way in which people express their gender identity was making the protections offered by the legislation “unclear” in practice.
“Language has evolved,” she said. “The Act refers to trans people as ‘transsexuals’, and uses the terms ‘sex’ and ‘gender’ at times interchangeably, with the requirement on employers to report ‘gender pay gaps’ in fact a duty to report on pay differences according to the protected characteristic of sex.
"Moreover, 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.”
Falkner added that changing the law to define sex as “biological sex” would “bring greater legal clarity” in eight areas such as the provision of single-sex spaces and “fairness” in women’s sports.
“Service providers are sometimes permitted to offer services to the sexes separately or to one sex only,” she said.
“For instance, a hospital might run several women-onlywards. At present, the starting point is that a trans woman with a GRC can access a ‘women-only’ service.
“The service provider would have to conduct a careful balancing exercise to justify excluding all trans women.
“A biological definition of sex would make it simpler to make a women’s-only ward a space for biological women.”
If the law is changed it would also result in a transfer of rights from trans women to trans men, allowing trans men to be considered in “women-only” shortlists as well as giving them pregnancy and maternity rights.
It could also result in transgender people being legally barred from accessing spaces that accord with their acquired gender, such as single-sex bathrooms.
The EHRC said a change in the definition could be “more ambiguous or potentially disadvantageous” when it comes to equal pay provisions, direct sex discrimination and indirect sex discrimination.
