Being wrong about sex

By Naomi Cunningham, Sex Matters Chair

One of my all-time favourite books is Kathryn Schulz’s Being Wrong: Adventures in the Margin of Error. It’s an extended meditation on the fact that it’s the human condition to be wrong about very many things, all the time; it’s being right that we should see as anomalous, exceptional. Schulz writes about the impossibility of knowing that you are wrong; at the very moment of realising your error, necessarily it evaporates. But the experience of changing your mind is a precious, fleeting, slightly vertiginously fascinating thing. 

Here’s my recent(ish) experience of changing my mind. It’s also my second attempt at an answer to the fast ball of a question Melanie Field, EHRC’s Executive Director, bowled at me at the end of the talk “After Forstater” I gave at my chambers last week. 

Sex in the Equality Act

One of the protected characteristics in the Equality Act 2010 is “sex”. 

Section 6 provides: 

In relation to the protected characteristic of sex—

(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex

On the face of it, that’s perfectly clear and unambiguous. “Sex” is about whether you are male or female. Discrimination on grounds of the protected characteristic of sex will be discrimination because you’re a woman, or because you’re a man (or because you’re a boy or a girl). 

But section 9 of the Gender Recognition Act 2004 (GRA) says this: 

(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

This is an instance of “deeming”. Deeming is the closest the law can come to doing magic. The law can deem things to be which are not, or not to be which are. Of course, the law can’t change reality that way – no actual magic is involved – but deeming can be a neat solution to a drafting problem. If you have a host of complicated provisions in acts, regulations, orders, statutory rules and so on that apply to all snabbits, and then you decide that there’s good reason why none of those rules ought to apply to a particular class of snabbits, you’re facing a long and weary task of finding all the different provisions of whatever type that mention snabbits and amending them to exclude your particular snabbits from their scope. So it’s a nifty shortcut if instead you can just deem that class of snabbits not to be snabbits. That way you only have to change one thing – the meaning of “snabbit” – instead of a whole host of different acts of parliament, statutory instruments etc that happen to mention snabbits. 

Section 9(1) of the GRA deems the sex of a person who has a GRC to have changed. Section 9(3) makes that subject to statutory provisions to the contrary. 

There’s nothing in either the GRA itself or the Equality Act to say “section 9 of the GRA doesn’t apply to change the sex of a person with a GRC for the purposes of the Equality Act”. So on the face of things, you’d think – and I used to think, with great confidence – it must follow that “sex” in the Equality Act bears its literal meaning, except in the case of a person who has a GRC; in which case, their “sex” is deemed to be the opposite sex. That, if true, would mean that when you exclude a trans-identifying male with a GRC from a women-only space, you’re not discriminating against him on grounds of his sex, because his sex is deemed to be female; so it must be discrimination on grounds of gender reassignment that you have to bring within one of the statutory exceptions. You can still exclude him, but the wording of the relevant exception looks a bit different, and at least arguably works differently.

In other words, section 9 of the GRA seems to have modified the class “women” so that where it used to mean simply “women”, it now means “women plus the subcategory of men who have GRCs”. 

I’ve never much liked that. It’s a peculiar, impractical kludge of a category. In any situation in which sex matters, a certificate really isn’t relevant. Sex is a fact about bodies, not paperwork. The justifications for maintaining single-sex spaces are all about the impact of the presence of the opposite sex on other users – and other users are unlikely even to know about the existence of a GRC. There’s certainly no earthly reason why they should care. 

But all the same, like it or not, for years I was convinced that that was the law: a GRC deems the sex of the holder to have changed for all legal purposes, except where there are some specific words to say that it doesn’t. And that means sex in the Equality Act means “sex as modified, where applicable, by a GRC” because there are no words to say it doesn’t. 

I’ve changed my mind. I now think the better view is that sex in the EqA still just means sex.


The presumption of rationality

What I have explained above is a literal interpretation of the meaning of the Equality Act read together with section 9 of the GRA. A literal interpretation of the legislative words is where statutory interpretation begins, but it’s not always where it ends. The literal interpretation must sometimes give way to the presumption that the legislature is pursuing a clear purpose in a coherent and principled manner. In R (on the application of N) v Walsall Metropolitan Borough Council, Leggatt J said:

”When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. That assumption shows appropriate respect for Parliament, enables Parliament most effectively to achieve its purposes and promotes the integrity of the law. In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort.”

In this case, a literal interpretation of the effect of section 9 of the GRA on the Equality Act makes nonsense of some of the most intricate mechanisms of the EqA; whereas an interpretation that give sex its natural meaning throughout elegantly resolves various otherwise knotty problems. 

I’ll give some examples. 

The definition of sexual orientation

First, the definition of the protected characteristic of sexual orientation: 

1) Sexual orientation means a person’s sexual orientation towards –

(a) persons of the same sex,

(b) persons of the opposite sex, or

(c) persons of either sex.

“Sex” here can only mean literal sex: sexual orientation is about whether you are attracted to people with male or female bodies. Human sexuality is almost infinitely various, and I suppose it is just conceivable that in some recondite corner of the internet there is a little tribe of certificate fetishists. But even if so, I do not think Parliament can be taken to have legislated on that basis. 

Section 13: direct discrimination 

At section 13, the Act defines direct discrimination. Section 13(6) reads:

(6) If the protected characteristic is sex

(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;

(b) 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.

If “sex” here means “biological sex except where modified by a GRC”, then any woman with a GRC declaring her to be male who suffers discrimination because she has given birth and is breast-feeding will be excluded from this protection. That’s not a result you’d expect to see from “a rational and informed body” pursuing the purposes of the Act in a “coherent and principled manner”. Of course, the problem does not arise if “sex” in the Equality Act just means sex.

Similarly, the specific protection from discrimination on grounds of pregnancy and maternity at sections 17 and 18 would leave trans-identifying women with GRCs declaring them to be men unprotected. There are many references in the Act to a “woman” in connection with maternity leave, all of which make sense only if understood as references to all women who are women by biology (including any with GRCs declaring them to be men); and not including men who are deemed women by operation of law. 

A full survey of all the respects in which the the Equality Act makes better sense if “sex” is simply taken to mean sex than if it is taken to mean “sex except where modified by a GRC” will have to wait for another day, but there are two more examples I find particularly persuasive. 

Single-sex services

The first is in paragraph 27 of schedule 3, which is the provision that make single-sex services lawful notwisthstanding the general prohibition of sex discrimination in services and public functions. Paragraph 27 makes single-sex services lawful provided the limited provision is a proportionate means of achieving a legitimate aim, and any one of six additional conditions is met. The first of these conditions is:

“only persons of that sex have need of the service”

If “only persons of that sex” means “only persons who are either of that sex biologically, or have a GRC declaring them to be of that sex”, how could this condition ever be satisfied? It would need to be a service that was needed only by women, plus men with a certificate declaring them to be women; and was never needed by men, or by women with a certificate declaring them to be men. What on earth would such a service look like?

The example given in the notes to the legislation is a cervical-smear test clinic. How could a certificate making a counter-factual declaration about your sex possibly make a difference to your need for this or any other service related to biological sex? 

These impossible questions melt away if you simply make the assumption that sex here means real sex, not legally deemed sex. Once you make that assumption, it’s perfectly obvious what kinds of services we’re talking about. Mammograms, menopause support groups, prostate examinations, and so on. 

The penultimate condition is: 

(a) the service is provided for, or is likely to be used by, two or more persons at the same time, and

(b) the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

Again, it’s easy to make sense of this if sex means sex. Lots of people will reasonably object to the presence of a person of the opposite sex in a changing room or a communal shower, for example. But imagine you’re a woman using a communal changing room marked as for women only. Imagine you’re undressing – you’re starting to take your knickers off when you look up and meet the eye of someone who is obviously male. You object, don’t you? Probably quite strongly; and reasonably so. You probably get dressed again and leave in haste; depending on the strength of your feeling and your prior life experiences, you may complain, sue – or simply leave and never go back. 

Now imagine that man smiles at you and says “It’s ok, I’m a woman – I’ve got a certificate to prove it.” It doesn’t make you feel any better, does it? 

A “person of the opposite sex” in this provision can only intelligibly mean “a person of the opposite [biological] sex.” 

Case by case 

The aspect of the drafting of the single-sex exceptions that I find most persuasive of all on this point is the difference in treatment of discrimination on grounds of sex, on the one hand; and discrimination on grounds of gender reassignment, on the other. 

Paragraph 27 of schedule 3 makes it lawful to discriminate on grounds of sex provided one of the individual conditions is met, and “the limited provision” (that is, the provision to one sex only) is a proportionate means of achieving a legitimate aim. That means that once those conditions are met, a service is simply allowed to exclude men (or women) across the board. Obviously that’s necessary if a single-sex service is to be single-sex: once you let even one man into a women-only space, it has become mixed. 

Paragraph 28, which deals with gender-reassignment discrimination in relation to single-sex or separate-sex services, is expressed more simply: 

A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

This is where it gets a bit complicated. Assume first I was right in my original belief: a person’s sex for the purposes of the Equality Act is their sex as modified by a GRC, if they have one. In that case, excluding a trans-identifying man from a women-only space is not discrimination on grounds of his sex, because his sex is deemed female: he counts as the same sex as the people who are allowed in. So it must be discrimination on grounds of gender reassignment. 

That means that the lawfulness of exclusion is tested by reference to paragraph 28. Is the conduct in question a proportionate means of achieving a legitimate aim? That appears to mean that the particular conduct – the decision to exclude this particular trans-identifying male – needs to be justified. In other words, what seems to be called for is “case by case” assessment. But that won’t work. How are the junior staff who are normally called on to admit or exclude people supposed to approach that assessment? I’ve written about the impossibility of this, once you get to grips with what it’s likely to mean in practice, on the Legal Feminist blog

So, once more, the “sex means legal sex” interpretation leads to a thicket of practical difficulty. Now look what happens if we assume that sex just means sex. 

If sex just means sex, a trans-identifying male can always be excluded from a single-sex space because of his sex – whether or not he’s got a GRC. In other words, single-sex spaces are allowed to be – well, single-sex. Provided only you’re willing to make the radical assumption that the female users of those spaces are full human beings with autonomous rights to privacy, dignity and their own boundaries, that makes a great deal of sense. 

But the really neat bit is that this hypothesis makes perfect sense of paragraph 28, too. On the “legal sex” hypothesis, paragraph 28 seems to require service providers to attempt impossible “case by case” assessments of which men ought to be allowed into any given single-sex space for women – even though the admission of even one man will necessarily make it a mixed-sex space. 

But on the “real sex” hypothesis, you’re allowed to exclude all men (including men with GRCs declaring them to be women) from the single-sex space, so the function of paragraph 28 is to deal with discrimination on grounds of gender reassignment: that is, exclusion of a woman on the grounds that she has the protected characteristic of gender reassignment. 

Here, finally, “case by case” makes some sense. Many women who identify as men will be perfectly acceptable in a women-only space, because most women who identify as men are still obviously women. Short hair and a masculine dress sense doesn’t make a woman look, sound or move like a man: they just make her look like a woman with short hair and a masculine dress sense. But there will be some women whose efforts to “pass” are more successful – especially if they have taken testosterone. It will often be fair and necessary to exclude women who genuinely pass as male from some women-only spaces. A GRC won’t matter to that decision, but testosterone-induced facial hair and a broken voice will. And the only possible way to approach this is “case by case”. 

There are parallel provisions elsewhere in the Act, seemingly making sex discrimination lawful across the board, but gender-reassignment discrimination lawful only if individually justified. They make much better sense on the “real sex” hypothesis every time. Section 195, dealing with participation in sport, is particularly striking. Of course it is fair to exclude all men from women’s sport – however they identify, whatever cosmetic surgery they may have had and whatever certificates they may hold. And of course it is not, generally, fair to exclude women from women’s sport simply because they identify as men. But also of course, it is fair to exclude trans-identifying women from women’s sport if they have an unfair advantage because they are taking or have taken testosterone. 

With thanks to the members of the board of Sex Matters who changed my mind on this in the course of many late-night conversations. We will be publishing a much longer paper on this subject in the fairly near future.