• Is there evidence that lack of clarity about the definition of sex in the Equality Act is a problem? YES
• What does the Equality and Human Rights Commission say?
• What is proposed?
• Would this require primary legislation that would open up the Equality Act to further amendments? NO
• Does this require a new legal definition of “biological sex”? NO
• What does the protected characteristic “sex” currently mean in the Equality Act?
• Would clarifying that sex in the Equality Act is not affected by a GRC remove rights from transgender people? NO
• Is it incompatible with international law and human rights? NO
• Would this mean that trans people are forced to use single-sex services for their birth sex? NO
• Would it mean that women are are forced to share single-sex services with “transmen” who just look like men? NO
• Would this disadvantage people with DSDs (“intersex” conditions)? NO
• Does this mean that trans people could not go to work safely, use services that met their needs, or use public spaces freely? NO

Is there evidence that lack of clarity about the definition of sex in the Equality Act is a problem?

Yes. This is an issue that has been raised consistently in consultations about the Gender Recognition Act and the Equality Act. 

It was raised by respondents to the public consultation about reforming the Gender Recognition Act in 2018. For example, the organisation Rights of Women responded:

“We are concerned that the current lack of clarity around the law could leave a women’s organisation seeking to rely on the exemption based on their interpretation of the law vulnerable to a legal challenge of unfair discrimination that could have devastating impacts on the service provider and the women they support. Equally trans women have a right to understand the extent of the rights they obtain via a GRC and where they stand in relation to lawful discrimination against them.” 

In 2019, the Women and Equality Committee undertook an inquiry on Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission. The issue was raised again. The committee reflected:

“When reading through the evidence on this issue, it struck us that different people were using the term ‘single-sex’ in different ways. For some, references to single-sex or women-only services meant services that did or would apply the exceptions to exclude trans women. One submission from a member of the public who described herself as ‘a woman who is increasingly concerned about the erosion of my rights’ stated that ‘[a]s soon as you say that transwomen are women, single sex spaces become mixed sex.’ Another individual, who described themselves as a ‘PTSD sufferer whose symptoms are triggered by males’ felt that: When a previously single sex provision becomes single gender it then it also becomes mixed sex, and unsafe for me and the multitudes of other women like me.”

The Committee concluded that non-statutory guidance would not be sufficient to bring clarity “in what is clearly a contentious area”. It recommended that the EHRC develop a dedicated code of practice concerning single-sex services, including “how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment”.

Concerns were raised again in 2021, when the Women and Equalities Committee undertook an evidence-taking session on reforming the Gender Recognition Act. The committee recommended:

“The GEO should work to update the language in both acts in relation to sex and gender, ensuring consistency in the definitions used. It should be clear when an Act is referring to natal sex, legal sex and gender. The Government should also aim to update all official documents that conflate the terms sex and gender.”

The issue was raised again during consultation on the proposed reform to the Gender Recognition Act in Scotland. There were different opinions regarding the effect of a GRC on the operation of the Equality Act. As the think-tank MBM said in its submission: 

“The Scottish Government believe that reform based on self-declaration will not affect who can access to single sex spaces. This position rests on the belief that GRCs have no effect under the Equality Act 2010. Their view is contrary to the UK Government and the EHRC and also at odds with the Scottish Government’s revised guidance for the Gender Representation on Public Boards Act 2018, which asserts that ‘where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman’. Both positions cannot be right, and it is likely that case law will be needed to settle this disagreement.”

There are practical examples of this uncertainty causing problems for service providers, sports organisations, employers and individuals.

More information: Our response to the government’s early reply to the petition , Single sex services report, Lesbians without liberty report

What does the Equality and Human Rights Commission say?

Baroness Kishwer Falkner, Chair of the Equality and Human Rights Commission sent the Women and Equalities Minister a letter 3rd April 2023 stating that the EHRC’s view on the law has been that a gender-recognition certificate (GRC) changes a person’s sex for the purpose of the Equality Act, but that “it has not been straightforward for service providers and employers to apply the law, including in areas such as sport and health services”.

Following discussions during several board meetings, the EHRC has come to the view that if sex is defined to mean biological sex for the purposes of the Equality act, this would increase legal clarity and reduce risk for maternity services; providers and users of other services; gay and lesbian associations; sports organisers; and employers. 

Baroness Falkner concludes that the proposal deserves further consideration, and recommends that the government undertake detailed policy and legal analysis if it wishes to pursue this. 
More information: Read the letter

What is proposed?

The government has not yet proposed a specific amendment, but it is clear from the minister’s letter and the EHRC’s response that what is being considered is an amendment to clarify that having a GRC does not change a person from male to female (or vice versa) for the purposes of the Equality Act.

Sex Matters has proposed a form of wording for an amendment. This would be added to the interpretation section (Section 212) of the Equality Act:

More information: Our campaign briefing

Would this require primary legislation that would open up the Equality Act to further amendments?

We don’t think so. When the Gender Recognition Act 2004 was passed, lawmakers recognised that it was an extraordinary piece of legislation, and that the implications of changing a person’s legally recognised sex “for all purposes” were unclear. Lord Cambell of Alloway said in the House of Lords:

“I have never seen a statute quite in this form before. The Bill says ‘becomes for all purposes’, and it is not limited to the purposes of the Act. I do not understand what all the purposes are if they are other than the purposes of the Act.”

Legislators put in a safety clause (Section 23) to give future governments the power to sort out any problems with interaction with other legislation. As the notes to the legislation explain:

“This power… is provided due to the entirely novel nature of this legislation. Legislation has made distinctions on the basis of gender [sex] for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts.”

Section 23 of the GRA gives the Secretary of State power to modify statutory provisions:

This can be done using a statutory instrument following “appropriate consultation”.

More information: Briefing for MPs

Does this require a new legal definition of “biological sex”?

No. Sex is already recognised as an immutable, binary, biological characteristic in common law. As Lord Nicholls of Birkenhead said in Bellinger v Bellinger [2003 UKHL]:

“The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilise the female’s eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.”

More information: Sex and the law

What does the protected characteristic “sex” currently mean in the Equality Act?

There are different views on this. There are two possibilities, which were recognised by Lord True in a statement to Parliament in May 2022.

• Male and female, and man and woman, relate to biological sex
• Male and female, and man and woman, relate to biological sex as modified by a gender-recognition certificate. 

Lord True said:

“When drafting a bill it is necessary to take into account the fact that a person may change their legal sex by obtaining a Gender Recognition Certificate. The effect of section 9 of the Gender Recognition Act 2004 is that a reference to a ‘woman’ in legislation, without more, will include someone who is a woman by virtue of a Certificate and will not include someone who is a man by virtue of a Certificate. In some cases, this might be the desired result but in others it might not.”

We believe that the desired result of the Equality Act was to continue to provide clear protection against sex discrimination for all women (meaning females), and for all men (meaning males), as had been provided by the Sex Discrimination Act 1975.

This is reflected in the judgment of For Women Scotland v The Lord Advocate & Scottish Ministers [2022] CSIH 4, which found that the terms “woman” and “man” relate to biological sex. 

This interpretation is also supported by a careful reading of the Equality Act. For example:

• Pregnancy and maternity. Section 13(6) of the Equality Act states that if a woman is treated less favourably because she is breastfeeding, this is sex discrimination, and that special treatment given to woman in connection with pregnancy or childbirth does not unlawfully discriminate against men. The meaning of these terms clearly relates to biological sex. Similarly, discrimination against women returning to work after having children, or against women who might get pregnant, is also considered sex discrimination. This protection must apply to “trans men” and detransitioners who hold a GRC which reads “male”. 
• The basis for “reasonable objections”. Similarly, schedule 3 part 7 sets out statutory justifications for single-sex and separate-sex services. These include situations where “a person of one sex might reasonably object to the presence of a person of the opposite sex” and those where “only persons of that sex have need of the service”. These conditions make sense only if “sex” means biological sex, not the holding of a certificate. Documentation cannot alter other people’s instinctive perceptions of a person, or change a person’s sex-based needs. If a service is provided separately to each sex on the basis that a person of one sex might reasonably object to the presence of a person of the opposite sex (for example in gym showers or a sauna), there is no reason to think this reasonable objection would be overcome by knowing that a person of the opposite sex has an official certificate misstating their sex. 
• The word “sex” is also used in the Act in relation to sexual orientation (Section 12). A person who is heterosexual or homosexual is sexually attracted to a person of the opposite sex or the same sex in the sense of biology, and not because of any government certificate they may hold. It is legitimate to have a service that is only for lesbians (women with the protected characteristic of homosexuality), and not to include men who identify as women and are attracted to women (even if those men have gender-recognition certificates stating their “acquired gender” as female). 

It is possible to argue conversely (as the Equality and Human Rights Commission does) that a GRC currently changes a person’s sex for the purpose of the Equality Act.

This was the conclusion reached by Lady Haldane in the FWS2 case:

“I conclude that in this context, which is the meaning of sex 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. Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex.”

In either case, it is within the mandate of Parliament to decide whether this is the desired result, and to clarify the law accordingly. 

More information: Male and female in the Equality Act, Being wrong about sex, Was the concept of biological sex really ended in 2004?

Would clarifying that sex in the Equality Act is not affected by a GRC remove rights from transgender people?

No. Transgender people without a GRC would continue to be covered by the protected characteristics of “gender reassignment” and “sex” in the same way as currently.

Transgender people with a GRC and transgender people without a GRC would be covered by the protected characteristics of “gender reassignment” and “sex” in the same way.

That is:

• A “transman” would be protected from unlawful gender-reassignment discrimination on account of being trans, and unlawful sex discrimination on account of being female. 
• A “transwoman” would be protected from unlawful gender-reassignment discrimination on account of being trans, and unlawful sex discrimination on account of being male.

Transgender people would also remain protected against discrimination based on their perceived sex. This means that, in the event that a “transman” was treated detrimentally because someone perceived them as male, or a “transwoman” was treated detrimentally because someone perceived them as female, they could also bring a claim in any situation covered by the Equality Act. 

More information: Why sex matters for human rights, Male and female in the Equality Act, Being wrong about sex, Was the concept of biological sex really ended in 2004?

Is it incompatible with international law and human rights? 

No, on the contrary. Protection against sex discrimination is a core part of human-rights legislation. Protecting transgender people against discrimination because of being trans cannot depend on removing some transgender people (those with a certificate) from protections against discrimination because of their sex. “Transmen” who become pregnant (or who are discriminated against because they can become pregnant, or are coming back to work after maternity leave) should not lose protection against sex discrimination because they have a GRC. 

Nor can equality law be used to force other people to pretend that a person has changed sex, in a situation where it is reasonable to object to sharing an intimate space with members of the opposite sex.

More information: Why sex matters for human rights

Would this mean that trans people are forced to use single-sex services for their birth sex?

No. The Equality Act does not force individuals to use any particular service. It provides them with means for seeking a remedy if they are treated detrimentally, including being excluded from using services. 

The single-sex and separate-sex exceptions in the Equality Act provide for service providers to lawfully set sex-based rules and to expect people to comply with them.

The Equality Act does not give male people who identify as female the right to use female-only services, or female people who identify as male the right to use male-only services. 

This does not mean that people are forced to use single-sex services for their own sex. In many situations where there are male and female facilities, an individual unisex option can be provided which does not rely on anyone declaring their sex or answering personal questions. 

More information: EHRC guidance on single and separate sex services, What does case law say about single-sex services?

Would it mean that women are are forced to share single-sex services with “transmen” who just look like men? 

No. Service providers are able to manage their services in order to keep everyone safe and comfortable, including acting on perception. This can mean excluding someone from a women’s facility who has had surgery and hormone treatment to look and sound like a man. 

A service provider would be covered by Schedule III paragraph 28 of the Equality Act, which allows for lawful gender-reassignment discrimination when providing a single-sex service. 

More information: The transman “gotcha”

Would this disadvantage people with DSDs (“intersex” conditions)?

No. Doctors check babies for disorders for sexual development (DSDs) soon after birth if there are indications such as undescended testicles or if a baby’s genitals look different. Tests may be done to help get a clear diagnosis and decide whether any immediate treatment is needed. Infants with DSDs are registered as male or female on their birth certificate according to these determinations. In very rare cases where it is determined that sex registered on the birth certificate was incorrect, there are processes in place to facilitate this correction. These do not involve a gender-recognition certificate.

More information: DSD Families

Does this mean that trans people could not go to work safely, use services that met their needs, or use public spaces freely?

Scottish Trans Alliance complains that this means that trans people would be “treated in line with their biological sex at birth by services and public bodies, and when participating in public life” this would mean that trans people “could not go to work safely, use services that met our needs, or use public spaces freely”.

This is not true. Transgender people without a GRC are already regarded by the Equality Act as being the same sex they always were. Such people (who constitute the great majority of trans people) are already able to work safely and use services that meet their needs. What they do not have is a right to use opposite-sex facilities.

For a person with a strong desire to be the opposite sex, it can be disappointing that neither law nor medicine can make this happen.

The Equality Act does not prescribe that services and public bodies should treat people differently because of their sex. Rather, it should treat them equally, and treat men and women differently only where there is a specific justification, such as those that justify providing a single-sex service. 

A gender recognition certificate does not change a person’s sex in relation to the material reason for single and separate sex services, nor does it change how other people see a person, or dictate that they must agree to pretend they are the opposite sex, or to ignore their sex.

In general, trans people should be treated by employers and service providers like all other people, that is equally, and with respect. They should be granted equal access to mixed-sex facilities. They may not wish to (and it may not be practical) to use communal facilities provided on the basis of their sex, and it is often possible to provide alternatives which offer greater individual privacy. 

More information: Sex and the law, Why sex matters for human rights

The post Campaign – sex in the Equality Act appeared first on Sex Matters.

One of the most important places where it matters that sex clearly means sex in the Equality Act is the public-sector equality duty. 

This is a far-reaching requirement for public authorities to have “due regard” to the need to eliminate discrimination, harassment and victimisation, to advance equality of opportunity and to foster good relations between groups with different protected characteristics. 

They are required to act to:

1. remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic
2. take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it
3. encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

It is clear that the Equality Act intended for women and men to be recognised as groups with different needs and interests. As Caroline Criado Perez has pointed out in her book Invisible Women, a world designed for men as the default disadvantages women. 

If “woman” in the Equality Act includes some males (as in the idea that only “99.9% of women don’t have a penis”) then public bodies can never focus on the needs of women and girls. 

Worse than that, replacing women as a sex with the idea of self-identified gender has the perverse effect of leading organisations to turn their diversity and equality function viciously against people who speak up about women’s concerns.

If there is no recognition that women suffer from disadvantage because of the shared characteristic of being female, the machinery of the public-sector equality duty turns inside-out to crush any action (or even speech) that addresses women as a group. It attacks precisely the provisions that are meant to support women at their most vulnerable.

In any sensible world it would be possible to say that “transwomen” – or trans-identified males, transsexuals or however you wish to term them – are a small minority of men who may have particular needs and vulnerabilities.

But they are a different group from women.

Because of the corruption of the public-sector equality duty, people who try to speak about women and transwomen as different groups are reported for wrongthink and sent for retraining. Female-only associations and services are delegitimised: denied funding, venues, training and recognition unless they welcome men who identify as women with open arms. People who champion women-only organisations or work for them fear for their careers. Policies to protect women and girls are not written down, but instead are operated ambiguously and surreptitiously, going underground and creating situations that put people at risk.

We have seen many examples of this. 

• If women self-exclude from swimming because they fear sharing the showers with men who identify as women, those women are seen by UK Active as being needing to be re-educated. “Some women have a penis: get over it” as Stonewall would say. 
• A man who identifies as a woman runs the Edinburgh Rape Crisis Centre, and women who want female-only counselling are told: “reframe your trauma”.
• While British Cycling has established that “woman” means “female” in all competitive cycling, it has kept its “Breeze” rides inclusive of males who identify as trans or non-binary. Breeze is a programme of volunteer-led “women-only” rides designed to encourage women to cycle more. But a woman may arrive at a meeting point to find that she is expected to ride off into isolated countryside with a man she has never met before. 

Programmes that women campaigned, volunteered and fundraised for are being repurposed as services to affirm the gender identity of gender-dysphoric males. This was never the intention of the Equality Act. 

All of these policies and decisions could be challenged if it was made clear that women are a group that share a protected characteristic defined by their sex.

Read the other posts in this series.

The post How the public-sector equality duty was turned against women appeared first on Sex Matters.

Among the questions discussed:

• What is the policy problem this proposal aims to solve?
• If our proposal becomes law (whether with our suggested wording or an alternative), what, in practical terms, is likely to change?
• Our petition is being debated at the same time as a rival petition which calls on the government not to amend the definition of sex in the Equality Act. What are the best arguments put forward by opponents of clarity?
• What, if anything, does the definition of sex in the Equality Act have to do with “gender self-identification”?

Watch the recording

For other Sex Matters webinars, see our YouTube channel. 

Background

To learn more about the details of our proposal and the thinking behind it, you can re-watch our webinar from 30th March:

– and read our answers to frequently asked questions about sex in the Equality Act.

Campaign blog posts

We will be publishing regular blogs every day from now until 12th June, addressing different questions and issues around our proposed amendment to the Equality Act.

Here are the first four:

• Why we don’t want “biological” added before “sex” in the law
• Why “sex” and “gender” mean the same thing in law
• Why sex must mean sex across the Equality Act
• How the public-sector equality duty was turned against women

We’ve also published a new blogpost by barrister Naomi Cunningham: What does a GRC do?

Bookmark this page to see the latest posts about the debate.

About the speakers

Michael Foran is a lecturer in public law at the University of Glasgow. He received his PhD from the University of Cambridge. His thesis Equality Before the Law won the prestigious Yorke Prize and will be published this year. He specialises in constitutional and equality law.

His recent article for Scottish Legal News looks at the issue in light of the For Women Scotland appeal and the GRR (Scotland) Bill and S.35 order – both cases that are due to come to court.  

Naomi Cunningham is a barrister specialising in employment and discrimination law. She was instructed in Fair Play for Women’s challenge to the ONS guidance on the sex question in the 2021 census. She is part of the lawyers’ collective Legal Feminist; she has written about sex and gender in sport, personal care, security staff guidance, and puberty blockers and parental consent. In February 2021 she gave evidence to the Women and Equalities Select Committee on behalf of Legal Feminist. She is chair of the Sex Matters board.

Her most recent blog post asks: What does a GRC do?

Helen Joyce is a journalist and author of Trans: When Ideology Meets Reality, an Amazon top ten bestseller, and Times of London and Spectator book of the year. She was a staff journalist at The Economist between 2005 and 2022, holding several senior positions, including International editor, Finance editor and Britain editor. She is director of advocacy for Sex Matters. Her newsletter can be found at thehelenjoyce.com.

Missed the webinar?

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Make a donation

Our webinars are free of charge, but you might like to consider making a donation towards our costs.

The post Sex in the Equality Act: the Westminster Hall debate – webinar appeared first on Sex Matters.

There will be a debate on our petition on Monday 12th June. Here is an update on the things you can do to support the campaign.

Share our video on Twitter and Facebook.

Write to your MP

If you haven’t written to your MP yet to ask them to come to the debate, now is the time to do it (it takes less than two minutes with our tool). If they have responded, write back and send them our latest blogpost.

Fly the flag!

You can show your support for the campaign by putting it in your social media profile. Download headers  for Facebook, Twitter and LinkedIn.

Share our campaign blogs

We will be publishing a campaign blog every day from now until the 12th, addressing different questions and issues.

Here are the first three:

• Why we don’t want “biological” added before “sex” in the law
• Why “sex” and “gender” mean the same thing in law
• Why sex must mean sex across the Equality Act

Bookmark this page to see the latest posts about the debate.

How to watch the Westminster Hall debate

The Westminster Hall debate will take place on Monday 12th June from 4.30pm. 

It will be broadcast on ParliamentTV and live tweeted (thanks to the Tribunal Tweets team).

There are no votes in this kind of debate, which will take the form “That this House has considered e-petitions 623243 and 627984, relating to the definition of ‘sex’ in the Equality Act 2010”. 

It is an important chance to have the arguments aired in parliament, and a Government minister will give a response.

There are some seats for spectators and anyone can attend. Westminster Hall debates take place in the Grand Committee Room on the upper level, off Westminster Hall. Visitors should enter the Palace of Westminster (at 3 St Margaret Street, London, SW1P 3JX) through the Cromwell Green entrance. Visitor assistants will be on hand to provide directions to the room. 

There is limited space and it is first come first served, but we have an overflow room booked, so those who don’t get into the main room can watch on the big screen together (and then all go for a drink afterwards!). If you are planning on coming, let us know at info@sex-matters.org so we have a rough idea of numbers. 

Party in Edinburgh!

Whatever happens over the next couple of weeks, we want to celebrate how far we have got.

Join us in central Edinburgh on Friday 16th June from 7pm for a celebration with Maya Forstater, Helen Joyce and most of the Sex Matters team, along with three special guests: Joanna Cherry KC MP, For Women Scotland’s Marion Calder and Elaine Miller, aka Gussie Grips. 

Tickets are £10 each. Find out more  or go straight to Ticket Tailor.

The post Campaign update: make the Equality Act clear appeared first on Sex Matters.

Many people who have written to their MPs about the proposal have had a response that says something like this: 

“The current guidance from the Equality and Human Rights Commission (EHRC) on existing legislation says that it is entirely acceptable for providers of single-sex services to take account of the biological sex of their service users. Where it is a proportionate means of achieving a legitimate aim, the Equality Act 2010 is clear that service providers can exclude, modify or limit access for transgender people, even where they have a Gender Recognition Certificate (GRC).”

This is a reference to Schedule 3 Part 7 of the Equality Act (the single-sex services exception). If you have had this reply from your MP, you might want to write back to them and send them this blog post.

The Equality and Human Rights commission has written to the Minister for Women and Equalities and said that in practice service providers have found this interpretation of the law hard to apply. This is not surprising, as its current guidance suggests that anyone providing a service separately for women and men has to think in legalistic terms about whether it is a proportionate means to a legitimate aim to exclude males with the protected characteristic of gender reassignment from the women, rather than having a clear policy that women means female-only. (More recent guidance from the EHRC says that they can have a clear policy, but suggests this is only after surveying users.)

The letter from the EHRC recognises that if the protected characteristic of “sex” is defined to mean biological sex, this would create rationalisations, simplifications, clarity and reductions in risk not just for single-sex service providers but across several areas of the act.

And provisions related to sex discrimination and single-sex situations run through the Equality Act. For the law to work it needs to be clear what this means. This does not just relate to Schedule 3 Part 7; it also relates to the meaning of sex in:

• Sex discrimination and harassment. Is a “transman” with a GRC covered by sex discrimination related to being female in the same way as one without a certificate? (Both can get pregnant and be mothers or face harassment related to their sex.)
• Equal pay. If a male colleague transitions and gets a GRC, is a female colleague who is paid less for the same job unable to bring an equal-pay claim using her male colleague (who is now officially female) as a comparator?
• Sport (Section 195). Separate sporting competitions can be organised for men and women where one sex is generally at a disadvantage in comparison with the other in terms of strength, speed or physique. 
• Occupational requirement (Schedule 9). Employers can restrict particular jobs if they can show that they need someone to have a protected characteristic, such as a women’s refuge worker or a bra fitter needing to be female. 
• Communal accommodation (Schedule 23). Dormitories, halls of residence and other shared accommodation can be provided for each sex separately for reasons of privacy.
• Charities (Section 193). Charities are allowed to be set up only for women and girls or only for men and boys.
• Associations (Schedule 16). Associations and clubs are allowed to be established for people based on a protected characteristic: a women writers’ association or a group for transgender people. 
• Single-sex schools (Schedule 11). Schools are allowed to admit pupils of only one sex. 
• Single-sex colleges (Schedule 12). Colleges are allowed to admit students of only one sex.
• Political parties (Part 7). Political parties may make arrangements to address the under-representation of people with particular protected characteristics – this can include single-sex shortlists for election candidates.
• Public-sector duty (Section 149) makes it a legal obligation for local authorities, NHS trusts and other public bodies to assess how their policies impact on people with protected characteristics, including women and girls.
• Positive action (Section 158-158). Employers and service providers are able to take action to overcome the disadvantage or under-representation of people who share particular protected characteristics.
• Opposite sex and same sex. The Equality Act uses the concepts of opposite sex and same sex to define sexual orientation and protect people from discrimination because of it; to recognise that many people feel more comfortable only with people of the same sex when undressing; and to allow religious organisations to operate according to their conscience (including choosing not to solemnise same-sex marriages).

All the different parts of the act need to work together without confusion or difficulty. 

For example, a sports organisation might run women’s and girls’ teams (competition), organise training sessions (service), have changing rooms and showers (service), create an award or bursary scheme to get women into the sport (positive action), employ a community outreach worker who needs to be a woman (occupational requirement), take teams on tour involving dormitories or shared bedrooms (communal accommodation), have an association for women in the sport (association) and apply for charitable status for it (charity). It will also need to monitor how it is doing on diversity and equality more broadly by collecting data (public-sector equality duty).

It shouldn’t be difficult or complex to do these things.

The Equality Act was intended to be user-friendly and clear. You shouldn’t need a lawyer or a degree in gender studies to understand it. The sports organisation above shouldn’t need to fear legal challenges or have to justify that it is lawful to be clear that “women” means female, in relation to all these different sections of the Equality Act separately.

A simple workable law is only possible if the protected characteristic of “sex” means sex across the whole of the Act.

Read the other blog posts in this series.

The post Why sex must mean sex across the Equality Act appeared first on Sex Matters.

The language of sex and gender is a confusing quagmire. 

The amendment we are proposing aims to clarify one particularly important thing: that the protected characteristic of “sex” in the Equality Act means whether someone is male or female (their biology) and is not modified by a gender-recognition certificate. 

Some people have argued for “sex” and “gender” both to be defined clearly in law (see for example the recent paper by Keep Prisons Single Sex). We think this would be a mistake (although we agree on much else). 

Sex and gender can mean different ideas in everyday speech and social science. And the term “gender” is often used as a polite synonym for sex, such as when asking someone to fill out a form. This has contributed to ambiguity about whether people are expected to answer with their true sex, or the sex they wish they were (and whether officials should indulge this).

The architects of the Gender Recognition Act took advantage of this ambiguity in language, but they did not create a separate legal categorisation of people by “gender”; rather they created a law that deemed some people to have changed sex for the purposes of some laws. 

Where the word “gender” is used in legislation to refer to the categories of male and female it still means sex. For example, the Education (Pupil Registration) (England) Regulations 2006 require that schools keep a record of every child on the roll, including their sex. Another regulation requires that schools submit this information to the Department for Education each year, but uses the term “gender”. It means sex. Another example is the judgment in the case of McConnell v The Registrar General, concerning whether a female person with a GRC who gives birth could be registered as a father. It states:

“Although for most purposes a person must be regarded in law as being of their acquired gender after the certificate has been issued, where an exception applies, they are still to be treated as having their gender at birth.” 

“Gender at birth” here means the same thing as “sex at birth”. We are not born with a separate legal sex and legal gender. 

It would be clearer if legislators and judges would simply say “sex” and drop the synonym “gender” altogether. 

Should “gender” have its own definition? 

The Council of Europe Convention on combating violence against women and domestic violence (the Istanbul Convention) defines gender as: 

“the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”.

This might be interpreted simply as a description: there are women (female) and men (male) and societies have different expectations for them. Or it could be interpreted as a statement that “man” and “woman” are genders and that you fall into one or other category depending on which constructed roles, behaviours, activities and attributes you perform. 

The Council of Europe says that the first, more straightforward, approach is what it means:

“This term neither replaces the biological definition of ‘sex’ nor the terms ‘women’ and ‘men’, but rather emphasises how much inequalities, stereotypes and – consequently – violence do not originate from biological differences, but rather from a social construct: that is to say, by attitudes and perceptions of how women and men are and should be in society.“

This makes sense in terms of understanding that men and women face different gendered burdens placed on their respective sexes and that the state should not encourage people to be constrained by such stererotypes, and should act where people are unfairly disadvantaged because of them.  

Rules that say only men or only women can perform particular socially constructed roles have rightly been removed from law (and are outlawed in employment and services by sex-discrimination provisions). Where the law distinguishes between men and women (rather than applying simply to people) it should be for a good reason, which can justified by one of the familiar conditions under which human rights and freedoms are qualified – such as public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.

But the extent to which individuals conform to expectations of masculinity and femininity is not a matter that impinges on those areas, and so it is not the business of the state to regulate. People are free to use the word “gender” in any way they like (and to dress however they please and call themselves whatever they like). But the law has no business defining gender and categorising people according to these socially constructed roles.  

The two concepts which do need to be clearly distinguished in the Equality Act are the protected characteristics of “sex” and “gender reassignment”. Being discriminated against because of being transgender (someone being called a “tranny” and refused service in a pub, for example) is different from sex discrimination. Both are prohibited separately by the Equality Act.

Read the other blog posts in this series.

The post Why “sex” and “gender” mean the same thing in law appeared first on Sex Matters.

The word “sex” appears 268 times in the Equality Act 2010; “same sex” appears 48 times, “opposite sex” 28 times. Our petition says: Update the Equality Act to make clear that the characteristic “sex” is biological sex.

We used this shorthand because the petition imposes a character limit. But our proposal is not to insert “biological” in front of sex in the Equality Act (or in other laws). There is no need. Sex already means being male or female, and until very recently people only said “biological sex” to differentiate between sex as a category or as an activity (having sex). 

But now the Equality Act needs to be clear about whether when it says “sex” it means a person’s actual sex, or whether that particular law recognises “sex” as modified by a gender-recognition certificate. 

As Lord True said in the House of Lords on 23rd May 2022 these are the two options:

“When drafting a bill it is necessary to take into account the fact that a person may change their legal sex by obtaining a Gender Recognition Certificate. The effect of section 9 of the Gender Recognition Act 2004 is that a reference to a ‘woman’ in legislation, without more, will include someone who is a woman by virtue of a Certificate and will not include someone who is a man by virtue of a Certificate. In some cases, this might be the desired result but in others it might not.”

The clarification we are suggesting does not require a new definition of “biological” sex; the meaning of the term is already well established in common law. The underlying position at common law is that sex is biological and is fixed at birth based on chromosomal and physical characteristics – based on the cases of Corbett v Corbett [1970], Bellinger v Bellinger [2003] and Chief Constable of West Yorkshire Police v A (No 2) [2005].

The amendment we are proposing is clearest when set out in pictures: it seeks to clarify that the protected characteristic of being a woman includes everyone born female, however they identify and whether they have a gender-recognition certificate (GRC) or not, and the protected characteristic of being a man includes everyone born male however they identify and whether they have a GRC or not. 

Our suggested wording is:

In practice there may be other wording that would work for a clarifying amendment. It needs to be precise and concrete and understandable. And it needs be able to fit within the limits provided by S.23 of the Gender Recognition Act, which gives the power to modify other laws relating to sex using a statutory instrument. Ultimately the job of crafting the amendment would be done by the Office of Parliamentary Counsel, whose job it is to draft laws. 

Read the other blog posts in this series.

The post Why we don’t want “biological” added before “sex” in the law appeared first on Sex Matters.