The next government must clarify the Equality Act

The next government must move quickly to fix the law so that it works for women and girls. Polling shows that most people support genuinely single-sex provision.

Clarifying the Equality Act has become an election issue. It should be considered by the political parties and by the media as a serious policy issue – not a political football. Women’s right’s matter and politicians should be in no doubt that if they fail to protect those rights women will hold them to account.

There is no reason for any political party to dismiss the need to amend the Equality Act to clarify the meaning of “sex”. Last year Labour’s National Policy Forum (NPF) agreed a policy position that commits to protecting single-sex spaces, and that promise cannot be kept without the law being clear. Simply providing guidance isn’t enough. 

The next government, whichever party is in power, needs to show leadership and fix the current muddle, rather than claiming there isn’t one. The For Woman Scotland case that concerns precisely the question of the meaning of “sex” in the Equality Act is going to the Supreme Court later this year on appeal.

Lady Haldane, in the first instance judgement on this case, said:

“it is important to reiterate… that the issue of transgender rights which forms a backdrop to this litigation is an often contentious social policy debate which is beyond the scope of this case.”

When faced with the question of how the law deals with the question of pregnant “men”, Lady Dorian, in the appeal judgment, said:

“It may be that the issue was simply not adequately considered in the passage of what was on any view a complex and multifaceted piece of legislation which underwent various iterations and amendments during its passage from bill to statute.“ 

The Equality Act 2010 – a significant achievement of the last Labour government – defined sex and “gender reassignment” as separate protected characteristics. The act rightly protects people who identify as transgender against discrimination and harassment. What is at issue now is something separate: protecting women against sex discrimination, protecting women-only spaces, and ensuring that the public-sector equality duty works for the benefit of women wherever they face sex discrimination and barriers to inclusion. None of these is possible if the law that protects women against sex discrimination isn’t clear about what a woman is.

Too often, when this issue arises, people consider the desires of trans people, and forget about the needs of a much larger group: women and girls. The Equality Act should mean both are considered. But it can only work if service providers, employers and public bodies understand that women and “transwomen” – that is, men who identify as women – are distinct groups with differing needs and life histories.

Last year a petition by Sex Matters asking Parliament to clarify the Equality Act gained 110,000 signatures. Clarifying the Equality Act also features in this year’s manifesto from Mumsnet. It’s clear that women want politicians of all stripes to take their rights seriously. It’s simply not good enough to dismiss this issue as a “culture war” or a “distraction”.