This is the sixth in a series of blog posts in the run up to the debate on 12th June about clarifying the Equality Act.
The Equality and Human Rights Commission’s letter to the government on our proposal to clarify the Equality Act points out that if the Equality Act treats a gender-recognition certificate (GRC) as changing someone’s sex for the purposes of sex-discrimination protections, it will have the fundamental effect of swapping categories around in relation to discrimination.
If a GRC changes a person’s sex for the purposes of the Equality Act:
- a “transwoman” with a GRC can bring a claim of direct or indirect sex discrimination as a woman, but not as a man
- a “transman” with a GRC can bring a claim of direct or indirect sex discrimination as a man, but not as a woman.
If a GRC does not change a person’s sex for the purposes of the Equality Act:
- a “transwoman” with a GRC can bring a claim of direct or indirect sex discrimination as a man, but not as a woman
- a “transman” with a GRC can bring a claim of direct or indirect sex discrimination as a woman, but not as a man.
In both cases they could all still bring a claim of direct or indirect gender-reassignment discrimination if they face a detriment because of being trans.
As the EHRC states, this binary choice in the law changes the specific rights of different groups of transgender people, but it does not reduce the sum total of protections that transgender people enjoy overall as a group, just the type of claim that an individual can bring. (Nor does either option remove perception-based discrimination protection, which does not rely on having a GRC: if a person is discriminated against on the basis of sex by someone who perceives them to be a particular sex, they could bring a claim anyway.)
Which is the right answer from a human-rights point of view?
Protecting trans people’s rights
One important reason to think that the correct answer must be that a trans person retains protection from discrimination as their actual sex is because this is a fundamental human right which should not be derogated from.
The cover of Glamour magazine this month features a photo of “pregnant man” Logan Brown.
Brown may or may not have a GRC, but having this piece of paper would clearly not remove Brown from the group of people who might experience sex discrimination on the basis of being female. Therefore a GRC should not remove Brown from protections against this.
What if Brown experienced a detriment in not being treated like other women – for example, not being given access to ante-natal treatment or benefits? This would not be a case of sex discrimination but could be direct gender-reassignment discrimination.
What if Brown experienced a detriment in not being treated like a man (for example if men are paid more where Brown works)? Well, this would be sex discrimination, and that is unlawful.
Protecting other people’s human rights
But what if Brown was not treated like a man in situations where it is lawful to treat men and women differently – for example being denied membership of an association for men, or access to a gay men’s sauna or a men’s health clinic)? This would not be unlawful sex discrimination (at least if a GRC does not change a person’s sex for the purposes of the Equality Act).
It is a key principle that the Equality Act does not allow any defence whatsoever to direct discrimination except in the case of age discrimination. However, there are particular exceptions that allow single-sex services to be provided in many common situations. Therefore, an organisation can have a policy or rule that restricts a service (or association, charity, job, college or similar) to one sex or the other if it is covered by a specific exception in the Equality Act.
These exceptions are there for a reason, mostly related to the protection of human rights. Both men and women have the right to consent over who gets to see and touch their bodies (a right protected by Articles 8 and 3). They also have the right to freedom of association, including in single-sex organisations. Various single-sex and separate-sex exceptions throughout the act reflect this.
Avoiding misuse of the Equality Act to drive medical decision-making
While many of the most often rehearsed arguments about sex and the Equality Act concern other people’s rights in communal spaces and associations, there is another issue to consider.
If a GRC changes a person’s sex for the purposes of the Equality Act it could be used to demand medical treatment that is offered to the opposite sex, and to override medical judgement.
The cases of AC v Berkshire West Primary Care Trust ( EWHC 1162 (Admin) and the case of North West Lancashire Health Authority v A & Ors  EWCA Civ both tested the use of discrimination law to drive medical decision-making. In the Berkshire case a male claimant without a GRC brought a claim for discrimination because the trust did not provide breast-augmentation surgery for people with gender dysphoria. The judge reiterated what was stated in the North West Lanarkshire case: that Article 8 (the right to private and family life) imposes no positive obligations to provide treatment.
However, a transgender person with a GRC declaring them to be the opposite sex might demand a particular treatment that is available to only members of that sex not because of specific consideration of their mental health, but simply arguing that not affording them the same treatment is direct discrimination based on the protected characteristic of gender reassignment.
For example, HRT routinely given to menopausal women might be compared to oestrogen given to males with a GRC; testosterone given to men with an endocrine condition might be compared with a female with a GRC seeking testosterone because her levels are low for a man. Breast-reconstruction surgery for women who have undergone cancer treatment might be compared to breast-enhancement surgery for trans-identifying men.
This is particularly a concern given that the Scottish Government is trying to legislate to allow children under the age of 18 to get GRCs, and for anyone to get one based on self-declaration, because there are increasing concerns about the number of young adults suddenly adopting trans identities and pushing for hormone treatment that will make them sterile, seeking to cut short mental-health assessments.
The basic human-rights argument underlying these three different routes is that “trans rights are human rights”. The rights that a trans person has under Article 8 cannot change based on whether they have a certificate or not. And the rights that other people have, including under Article 8 (their right to privacy), Articles 9, 10 and 11 (freedom of belief, speech and association) and Article 3 (on degrading treatment) are also unchanged.
There is no reason in human-rights law for an organisation to treat a person with a GRC differently from one without one. But there are reasons for protecting everyone from discrimination because of their sex – and for sometimes having rules that treat people differently because of their sex.
As Kishwer Falkner concludes in her letter: “Human rights law may require the statutory recognition of biological sex.”