Was the concept of biological sex really ended in 2004?
This is the second in our series of posts about the Haldane judgment.
Philip Larkin famously wrote that “Sexual intercourse began / In nineteen sixty-three […] Between the end of the Chatterley ban / And the Beatles’ first LP”. Protection against sex discrimination followed not long after, in 1975, with the Sex Discrimination Act.
Last week Lady Haldane decreed that legal protection against discrimination on the basis of biological sex ended quietly with the passing of the Gender Recognition Act 2004.
She ruled that:
“for the purposes of the 2010 Act, ‘sex’ is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex.”
Although this judgment of the Scottish Court of Session is not binding in the rest of the UK, it does make a judgment about the Equality Act as a whole and it has been endorsed by the Equality and Human Rights Commission.
The three main reasons she gave for her judgment were:
- The word “biological” does not appear in the definition of sex in the Equality Act 2010.
- The Equality Act 2010 was drafted in full awareness of the Gender Recognition Act 2004, which states in Section 9 that it changes sex “for all purposes”.
- Well-established principles of statutory interpretation include the presumption that the drafters of legislation are highly skilled individuals who do not insert or omit words or use language carelessly.
She states:
“I do not accept that this gives rise to any absurdity, or unworkability, as suggested by the petitioner, providing that the plain language of section 9, and any relevant exceptions, is applied.”
We think this judgment is wrong and unworkable in its reasoning, and hope that another court takes a different view. But we don’t think it should be left to the courts to try to puzzle this out, or for women to have to crowdfund endless legal cases to clarify bad laws.
Lady Haldane is right that the GRA does say “for all purposes”. In practice, however, that gives rise to absurdity and unworkability, as this analysis will show.
The GRA includes within it a provision to fix such situations. Section 23 gives the secretary of state the power to make an order modifying the operation of any enactment or subordinate legislation, where it turns out that “for all purposes” leads to problems in real life or in law.
We are calling on the minister for women and equalities to use this power to amend the Equality Act by adding this clarification:
| In this Act, references to female persons and women: (a) also refer to a person who was born female and has acquired the male sex under the GRA (b) do not refer to a person who was born male and has acquired the female sex under that Act. In this Act, references to male persons and men: (a) also refer to a person who was born male and has acquired the female sex under the GRA (b) do not refer to a person who was born female and has acquired the male sex under that Act. |
We believe that this is the interpretation that Parliament intended in the original act, and the omission of the word “biological” does not in fact mean that the legislators intended to redefine the terms sex, male, female, man and woman in the way that Lady Haldane reads them.
Underlying this are four axiomatic principles:
- Sex is real. None of Lady Haldane’s interpretation, our proposed amendment or the original GRA can change the fabric of reality. Sex is real, immutable and binary. It is not possible for a person to change from being biologically male to biologically female. It is only possible to change the definitions of categories.
- Human rights are universal. As Article 14 of the European Convention of Human Rights states: “Enjoyment of the rights and freedoms set forth in the ECHR shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
- Parliament did not intend to remove protection against sex discrimination. The Sex Discrimination Act 1975 (which also and equally protects men from sex discrimination) recognised that women are discriminated against because of their sex, and established protections against this. There has been no intention of parliament to remove that protection.
- Words in legislation must have clear and consistent meaning within a particular piece of legislation: the words male, female, man, woman and sex (including opposite sex and same sex) cannot mean different things within the Equality Act.
Lady Haldane quotes Lord Hope in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61, 2013 SC (UKSC) 153, paragraph 14:
“The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used.”
But she does not test whether her interpretation of the words sex, male, female, man and woman produce a coherent, stable and workable outcome within the Equality Act.
The definition of sex in the Equality Act
This table shows how Lady Haldane’s interpretation and ours offer two different sets of definitions to apply across the Act (these are colour coded blue and pink to make clear which combination of words describe which underlying biological reality).
| Word | Lady Haldane | Sex Matters |
| Male | Someone who is biologically male and does not have a GRC or someone who is biologically female and does have a GRC. | Someone who is biologically male |
| Female | Someone who is biologically female and does not have a GRC or someone who is biologically male and does have a GRC. | Someone who is biologically female |
| “Man” (S.212) | A [biological] male of any age [without a GRC] or a [biological female of any age in possession of a GRC] | A [biological] male of any age |
| “Woman” (S. 212) | A [biological] female of any age [without a GRC] or a [biological male of any age in possession of a GRC]. | A [biological] female of any age |
| Sex: a reference to a person who has a particular protected characteristic (S.11) | Is a reference to a [biological] male [without a GRC] or a [biological female with a GRC] or to a [biological] female [without a GRC] or a [biological male with a GRC] | Is a reference to a [biological] man or to a [biological] woman |
| Sex: A reference to a person share a protected characteristic (S. 11) | [Person who have the same category recorded on their current birth certificate in the sex field, regardless of their biological sex]. | to persons of the same [biological] sex |
In the view of the Scottish Government, the EHRC and Lady Haldane the term “same sex” is a concept which can mean people who are of opposite [biological] sexes, while “opposite sex” can mean people of the same [biological] sex.
When applied across the relevant section of the Equality Act it is only the biological sex definition which retains the sense of the legislation and which reflects other people’s rights.
Single-sex services
Paragraph 27 of schedule 3 defines a single-sex service and sets out statutory exceptions to the sex-discrimination provisions to allow them
“A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if (a) any of the conditions in sub-paragraphs (2) to (7) is satisfied, and (b) the limited provision is a proportionate means of achieving a legitimate aim.”
The meaning of “single-sex service” depends on the meaning of sex.
| Lady Haldane | Sex Matters | |
| Single-sex service | A service for people who have the same category recorded on their current birth certificate or gender-recognition certificate, regardless of their biological sex. | A service for people of a single biological sex. |
Schedule 3 paragraph 27 sets out some reasons for such services, which gives a clue as to which of these interpretations reflects the intention of the legislators.
| Lady Haldane | Sex Matters | |
|---|---|---|
| P27 (2) The condition is that only persons of that sex have need of the service | The condition is that only persons of that [category recorded on their current birth certificate or gender-recognition certificate, regardless of their biological sex] need the service | The condition is that only persons of that [biological sex] need the service |
In fact the example in the explanatory notes for this section is a cervical-cancer screening service. This supports the interpretation that the legislators were using the ordinary, biological meaning of the word sex here, and not Lady Haldane’s mixed-sex formulation.
Similarly, paragraph 27 (6) gives another possible justification for single-sex services.
- the service is provided for, or is likely to be used by, two or more persons at the same time, and
- the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.
| Lady Haldane | Sex Matters | |
|---|---|---|
| P27 (6) The circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex | P27 (6) The circumstances are such that a person [with one category written on their birth certificate or gender-recognition certificate] might reasonably object to the presence of a person [with the opposite category written on their certificate or gender-recognition certificate] | P27 (6) The circumstances are such that a person of one [biological] sex might reasonably object to the presence of a person of the opposite [biological] sex |
The example given in the explanatory notes is separate male and female changing rooms to be provided in a department store, and the example for the similar section 27 (7,) which concerns situations with bodily contact, is “a massage service to be provided to women only by a female massage therapist with her own business operating in her clients’ homes because she would feel uncomfortable massaging men in that environment”.
Again it seems obvious that what is meant in these scenarios is biological sex. A woman who would feel uncomfortable being surprised to find herself sharing a changing room with a man, or being required to massage a man in his home would likely feel equally uncomfortable if that man identifies as a woman, even if he has a government certificate.
According to Lady Haldane, the Equality Act offers no statutory protection for (indeed no comment at all on) services offered on a female-only basis (such as JK Rowling’s new Beira’s Place rape-crisis centre).
According to her interpretation, the Act conceives of people as holders of certificates rather than individuals with bodies. This seems hard to reconcile with the intention of the Act – or with reality.
Pregnancy, maternity, breastfeeding
Pregnancy and maternity are a separate protected characteristic, but they are limited to the period of pregnancy, birth and 26 weeks post-partum. General sex-discrimination protection covers women being discriminated against, for example, as mothers at work, or because they are seen as likely to become pregnant in the future. These detriments could apply equally to “trans men” with or without a GRC, since their employer is discriminating against those with female biology.
Similarly, the Equality Act explicitly links the protected characteristic of sex directly to the biological functions of sexual reproduction.
13 (6) If the protected characteristic is sex—
- less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
- in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.
Applying Lady Haldane’s definition to this section makes it incoherent:
| Lady Haldane | Sex Matters | |
|---|---|---|
| 13 (6a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; | 13 (6a) less favourable treatment of a [biological] female of any age [without a GRC] [or a male of any age in possession of a GRC], includes less favourable treatment of her because she is breast-feeding; | 13 (6a) less favourable treatment of a [biological] woman includes less favourable treatment of her because she is breast-feeding; |
| 13 (6b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. | in a case where B is a [biological] male of any age [without a GRC] [or a biological female of any age in possession of a GRC], no account is to be taken of special treatment afforded to a [biological] female of any age [without a GRC] [or a male of any age in possession of a GRC]. in connection with pregnancy or childbirth. | 13 (6b) in a case where B is a [biological] man, no account is to be taken of special treatment afforded to a [biological] woman in connection with pregnancy or childbirth. |
It is beyond any doubt that the common-sense meaning of sex, man and woman in this section must align with biology. If Lady Haldane’s interpretation is correct, not only is the statute ridiculous but it has the real effect of excluding a “trans man” (that is, a woman with a gender-recognition certificate) from protection against discrimination on the basis of breastfeeding.
As the EHRC argued (as reported in the judgment), its interpretation means “a person wishing to complain of, say, discrimination at work would require to do so in their acquired sex and gender but that a person was protected by the same rights and freedoms as anyone born of that sex” (at paragraph 36).
Sexual orientation
Section 13 of the Equality Act defines sexual orientation as a person’s sexual orientation towards –
- persons of the same sex
- persons of the opposite sex, or
- persons of either sex.
As the explanatory notes set out, this relates to (a) a gay man or lesbian b) a heterosexual and c) a bisexual. But Lady Haldane’s interpretation of the terms “same sex” and “opposite sex” suggests that people are attracted to certificates, not bodies.
| Lady Haldane | Sex Matters | |
|---|---|---|
| Gay man | A [biological] man [without a GRC] or [a biological woman with a GRC] with a sexual orientation towards [biological] men [without a GRC] or [biological women with a GRC] | A [biological] man with a sexual orientation towards [biological] men |
| Lesbian | A [biological] woman [without a GRC] or a [biological man with a GRC] with a sexual orientation towards [biological] women [without a GRC] or [biological men with a GRC] | A [biological] woman with a sexual orientation towards [biological] women |
| Heterosexual man | A [biological] man [without a GRC] or a [biological woman with a GRC] with a sexual orientation towards [biological] women [without a GRC] or [biological men with a GRC] | A [biological] man with a sexual orientation towards [biological] women |
| Heterosexual woman | A [biological] woman [without a GRC] or a [biological man with a GRC] with a sexual orientation towards [biological] men [without a GRC] or [biological women with a GRC] | A [biological] woman with a sexual orientation towards [biological] men |
The Haldane interpretation of the GRA turns a set of separate, consistent and clear definitions in the Equality Act into a mess. According to this formulation the government can give a heterosexual man a certificate which turns him into a lesbian.
Do the exceptions still work?
The Equality and Human Rights Commission intervened in the case and took the same position as the Scottish Government. It says that even though it believes that the Gender Recognition Act changes sex for all purposes, service providers can use the exception in Schedule 3 paragraph 28 which allows for gender-reassignment discrimination in order to exclude a trans-identified male with a GRC from a female-only service.
But if Lady Haldane’s interpretation is accepted, it is hard to see how this can work.
According to her interpretation, a “single-sex service” for women as envisaged by the Equality Act is by definition a service for the category which includes biological males with a gender-recognition certificate.
What could then be the legitimate aim of excluding some of these people or treating them differently? Even on a “case by case” basis, there would be no reason to treat a certified woman differently just because she happens to have a penis or a beard, for example, since according to Lady Haldane biological males are included in the category “female” and are the “same sex” as other females.
Her interpretation would apply to Schedule 16 (1) on single-characteristic associations.
It suggests that this section offers no protection for private associations organised on the basis of biological sex, such as (historically) the Girl Guides and Women’s Institute, or associations for lesbian women or gay men, Muslim women, Christian women and so on.
Similarly for the Public Sector Equality Duty, which requires public authorities to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”. Biologically female people, she says, do not share a relevant protected characteristic. There is no duty to advance equality of opportunity as compared with biological males.
Where was the carelessness?
Lady Haldane says that her interpretation must be correct because “it would have been entirely open to the drafters of the legislation to put the matter beyond doubt” by including the word “biological”.
But this seems like a minor carelessness – or in fact, not carelessness at all, because there are many laws that clearly relate to the two sexes which do not say “biological”. Accidentally legislating for biologically female “gay men”, biologically male “lesbians” and biological males who breastfeed, and removing the clear protection against sex discrimination established in 1975, seems like a much greater carelessness.
Rather, the fact that the drafters did not insert “biological” in front of sex in these places where the meaning is so obviously biological confirms that they did not mean for there to be different meanings of the word across the Act.
The meaning that makes sense in relation to sexual orientation and sexual reproduction also makes sense for other sections which concern harassment and discrimination against women and men because of their sex, and situations where sex-based rules are legitimate. That is people are discriminated against because of their actual biological sex as perceived by others (almost always accurately).
In making the argument that the 2010 Act was drafted in full awareness of the 2004 Act, Lady Haldane refers to the explanatory note to the 2004 Act which states that:
“The person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975.”
In fact such protection does not depend on a GRC: any male who identifies as a woman and changes their presentation would be protected by the provision against discrimination by perception if they were mistaken for a female person and discriminated against on this basis. This is not the same as saying they have the right to use a women-only service.
The Equality Act 2010 and the Gender Recognition Act have interacted together in a state of ambiguity and confusion for the past 12 years. The Haldane ruling makes clear that this cannot continue, nor can it be allowed to stand.
If the GRA 2004 really did remove clear protection from sex discrimination then it destroyed protections for women’s rights and everyone’s rights to freedom of expression, freedom of belief and freedom of association. The implications of this can already be seen playing out in real life: the CPS has issued guidance suggesting that a gender-recognition certificate can be used to overcome lack of free consent in a sex-by-deception case; the LGB Alliance has faced a long and costly legal battle to protect its charitable status against claims that the Equality Act redefines sexual orientation; and women’s-sector organisations are facing pressures against remaining female-only.
A legislative disambiguation is needed to ensure that protection against sex discrimination, and against sexual orientation discrimination – clearly expressed in ordinary language – did not carelessly end in two thousand and four (between the final episode of Friends and the Arctic Monkeys’ first CD).