EHRC publishes letter on clarifying sex in the Equality Act

We have come to the view that if ‘sex’ is defined as biological sex for the purposes of EqA, this would bring greater legal clarity in eight areas.

Sex Matters’ press statement

Sex Matters welcomes the letter from Kishwer Falkner, Chair of the Equality and Human Rights Commission, to Kemi Badenoch, the Minister for Women and Equalities, responding to her request for advice on clarifying the definition of the protected characteristic of sex in the Equality Act 2010.

We particularly welcome the recognition by the official human-rights watchdog that there can be competing rights between the “the rights of trans women and of biological women” and that human-rights law may require the statutory recognition of biological sex, for example in the enjoyment of separate-sex and single-sex spaces or sporting activities.

The minister highlighted the petition, started by Maya Forstater, advocating an update to the Equality Act to make clear that the characteristic of ‘sex’ refers to biological sex rather than “sex as modified by a Gender Recognition Certificate”. This has been promoted by Sex Matters and received more than 100,000 signatures.

In a nine-page letter,  Baroness Falkner says: 

  • In its consultation to develop the EHRC’s strategic plan, sex was important to the highest proportion of respondents, and that many were concerned about the interaction between the protected characteristics of “gender reassignment” and sex. 
  • It has not been straightforward for service providers and employers to apply the law, including in areas such as sport and health services. 
  • The debate has become so polarised and contentious that civil debate is inhibited. 
  • The EHRC has 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.
  • The EHRC states that the clarification might bring potential ambiguity in other areas such as how trans people with a GRC are treated in relation to equal pay claims and direct and indirect sex-discrimination claims.

The eight areas

  • Pregnancy and maternity protection for “trans men” who have a GRC.
  • Freedom of association for lesbians and gay men.
  • Freedom of association for women and men.
  • “Women-only” shortlists and other measures aimed at increasing female participation.
  • Jobs where sex matters such as working in a women’s refuge.
  • Single-sex and separate-sex services. The EHRC says: “A biological definition of sex would make it simpler to make a women-only ward a space for biological women”.
  • Sport. At present, to exclude “trans women” with a GRC from women’s sports, the organiser must show that it was necessary to do so in the interests of fairness or safety. A biological definition of sex would mean that organisers could exclude trans-identifying men from women’s sport without this additional burden. 
  • Data collection. “When data are broken down by legal not biological sex, the result may seriously distort or impoverish our understanding of social and medical phenomena.” 

Naomi Cunningham, Chair of Sex Matters, says:

“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.”

Notes to editors: