The new deal for working people and the definition of sex

We expect the government to take action in the first 100 days on its new deal for working people, and that we will see something about this in the King’s Speech on 17th July, when its immediate legislative programme is announced.

Before the election the Labour Party said that, in government, it would act “on the side of women and business” and would be “prioritising the wellbeing of women workers” because:

50 years after Barbara Castle’s Equal Pay Act and 14 years after Harriet Harman’s Equality Act, women are still fighting for equality in the workplace.

Labour’s plan to make work pay

Specific pledges include to: 

• strengthen protection for equal pay for work of equal value by women and men
• strengthen equality impact assessments for public-sector bodies
• tackle gender pay gaps by requiring large employers to develop, publish and implement action plans
• require large employers to produce menopause action plans, setting out how they will support the women who work for them through the menopause
• create a single enforcement body with powers to undertake targeted and proactive enforcement work and bring civil proceedings to uphold employment rights
• provide better support for employers to comply with the law with clear, coherent guidance and examples of best practice
• strengthen protections for pregnant women by making it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances
• review health and safety guidance and regulations with a view to making workplaces safer
• tackle sexual harassment at work. 

So far, the government has said it has no plans to clarify the meaning of the protected characteristic of “sex” in the Equality Act. 

But in acting to protect women at work, and in ensuring that employers understand their duties, it will need to be clear to about what “woman” and “man” mean. It is no good remaining ambiguous, telling people to “be kind” or leaving every employer to work it out for themselves. What employers need are simple directions on how to comply with the law – especially when different people and lobby groups are telling them different things. 

Whether employers are reporting on the pay gap between men and women, providing facilities that ensure women’s privacy and dignity at work, protecting women from sexual harassment or thinking about the barriers that women face to equality at work (such as those related to motherhood), they need to know what a woman is.

Three different views

Stonewall says: self-identified gender

Organisations such as Stonewall remain powerful in many workplaces. It says that being a woman is a question of how you feel:

“Trans women are women, and because of that it makes sense that they should have the same opportunities as any other woman.” 

Stonewall

This would mean that all policies and facilities intended to support or protect women would include men who identify as women.

Labour peer Ayesha Hazarika, who is a trustee of the Fawcett Society, another organisation that advises employers, also espouses this view. She has even written celebrating men who identify as women joining a menopause support group: ’“Trans women are not only welcome, they are cherished — we have all learned from their stories and world class ability to accessorise.”

When employers impose these ideas on staff, women’s rights at work are harmed.

In Darlington, a group of nurses are suing the hospital where they work after they say they were made to feel unsafe by being expected to change with a male staff member who identifies as a woman. They say that instead of being protected against sex-based harassment, they were told by HR that they needed to be “re-educated”.

The EHRC says: sex as modified by a GRC

The Equality and Human Rights Commission (EHRC), the national human-rights regulator, takes a different view, which is sometimes called “legal sex”:

“Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.”

Equality and Human Rights Commission

The EHRC says that employers and service providers can still exclude people from opposite-sex services even if they have a GRC, but they will have to take a complicated legal route to defend it if they are challenged in court.

The EHRC admits that with this approach it “has not been straightforward for service providers and employers to apply the law”, and says that if ‘sex’ was defined as biological sex for the purposes of Equality Act, this would bring “greater legal clarity” in several areas. 

Sex Matters says: sex means sex

Sex Matters’ view is that if you play close attention to the policy aims of the Equality Act, the most sensible interpretation of the terms “man” and “woman” remains the common-law meaning, that is, actual sex, since this is why people face sex discrimination in the first place: not because of what is recorded on a government document, and not because of their name, their pronouns or the way they dress. 

The Equality Act 2010 (and the Equal Pay Act 1970 and the Sex Discrimination Act 1975 before it) uses the word “sex” in the same way as the dictionary. It is a basic category of biology and is reflected in common law. The Equality Act protects against sex discrimination, which in practice means detrimental treatment relating to the sex that other people know or perceive a person to be, not the sex that a person wishes they were.

Sex Matters

In November the Supreme Court will be considering the correct interpretation of sex in the Equality Act in the For Women Scotland case (Sex Matters has applied to intervene).

The government should consider policy intent

The government cannot palm off responsibility for finding the answer onto the Supreme Court. The responsibility for new policies and laws lies squarely with the government and Parliament. As the Leaders of the Houses of Commons and Lords said in a statement about sex in legislative drafting in 2022: 

“Each Bill is brought forward on its own merits and is drafted in a way to ensure legal clarity and in order to fulfil the Bill’s policy intent.”

Lord True and Mark Spencer

Every time the government sets out to do something for “women at work” it will have to make clear whether its policy intent is to address the specific problems faced by female people; or by female people plus some males with a certificate (and minus some females with a certificate); or by anyone of either sex who identifies as a woman (minus anyone of either sex who doesn’t). 

Brushing off this question as a “culture war” or keeping the definition ambiguous harms women. If the government argues that protecting women’s rights at work is high-priority, it must be clear about the policy intent of any new legislation or policy, and provide legal clarity in drafting. 

To start with, it needs to provide clarity on the following questions:

• Gender pay gap: Must employers include or exclude male employees who identify as women (with or without gender-recognition certificates) in the category of women in their gender pay gap monitoring?
• Equality impact assessment: When reviewing policies, must public-sector organisations consider women (female people) as a group with specific needs and legal protections, or must they consider only “self-identified women” including men who identify as women (with or without a gender-recognition certificate)?
• Menopause action plans: Which group of people is being targeted by these policies? If an employer sets up a support group and a male employee who identifies as a woman wants to join, can the employer say no? Would a gender-recognition certificate make a difference?
• Health and safety at work: Does the health and safety requirement to provide toilets separately for women and men mean that an employer must allow male employees who identify as women (with or without gender-recognition certificates) into women’s toilets? Or does it mean it must exclude them?
• Sex-based harassment: If an employer allows male employees (with or without gender-recognition certificates) to use showers, changing rooms and dormitories provided for female employees, is this harassment and discrimination against women?
• Sexual harassment: Should employers allow a male member of staff to search a female colleague or service user? (Would a gender-recognition certificate make a difference?)

The supermarket chain Tesco has adopted this policy in relation to single-sex facilities:

“Where there are only single-sex facilities in your place of work, colleagues should feel able to use the facilities that are the best fit for them, whether that be aligned to their gender identity or gender expression. For colleagues who are non-binary or gender-fluid they may wish to use a mix of both facilities in a day or on different days.”

This is not a policy that prioritises the wellbeing of women workers.

The recent run of gender-critical belief-discrimination cases shows how ambiguity and bad policies on such issues have made workplaces hostile environments for women who speak clearly about the two sexes. When women seek to have existing protections in the Equality Act upheld, or to raise concerns about safeguarding or consent, they are harassed, victimised and hounded out of their workplaces and careers.

The government will not be able to claim to be helping women at work if it does not fix this problem by clarifying the law and being clear about its own policy intents. 

If it develops priority actions for women in the workplace with organisations that insist that “trans women are women” and call those who disagree “transphobes”, its new policies and laws will end up as yet another means to punish, harass and discriminate against women at work.