Unclear law is bad law. Ambiguously drafted statutes result in judges scrabbling to interpret what exactly legislation means when disputes hit the courts and organisations that don’t know what their legal obligations are because even lawyers don’t agree.
The Equality Act is an important piece of legislation passed by Labour in 2010 that enshrines protections against discrimination for many groups. But there’s an ambiguity at its heart: when it refers to “sex” in relation to single-sex spaces, services and sports, does it mean biological sex or legal sex?
What might seem an obscure technicality is in reality an important distinction. A separate law passed in 2004 allows someone with a medical diagnosis of gender dysphoria to be granted a gender recognition certificate (GRC) that confers the right to be treated as though they were of the opposite sex for many legal purposes. Because the Equality Act doesn’t define “sex”, it’s unclear whether anyone male who has a GRC must be treated as though they were female in equality law and vice versa.
This would have unintended consequences. Someone female with a GRC who gets pregnant would not be covered by Equality Act protections against pregnancy and maternity discrimination, for example. It would make it much riskier legally for a service provider to exclude someone male with a GRC from female-only services, such as prisons, rape-crisis centres and changing rooms. It could make it impossible for a care agency to honour a disabled woman’s request for female-only intimate care and for a woman in prison to refuse a strip-search from anyone male. It would mean a lesbian support group could not lawfully exclude a male with a GRC who identifies as a lesbian.
This legal ambiguity makes it extremely difficult for small charities and volunteer-run groups to know when it is lawful to offer a female-only service, not least because whether or not someone has a GRC is private information. But people have so far muddled through in a context where the numbers of GRCs issued are small.
What has moved a clarification from desirable to critical, however, is Scottish legislation that would radically change the basis on which someone can get a GRC. If the Scottish government wins its ongoing legal wrangle with Westminster over its reforms, anyone male – including men who commit voyeurism and exposure, and other abusive predators – could acquire the right to be treated as female on the basis of self-declaration.
This is the context in which Kemi Badenoch asked the Equalities and Human Rights Commission (EHRC) if the government should clarify the law to make clear sex means biological sex in the Equality Act.
In a welcome intervention, the commission last week wrote to the equalities minister to say there is indeed a case for doing so.
This wouldn’t affect the Equality Act’s critical protections against unlawful discrimination for trans people on grounds of gender reassignment. But it would improve the legal framework in the interests of balancing everyone’s needs, by clarifying the sex-based protections that allow for female-only services for legitimate purposes – such as protecting the privacy, dignity and safety of women who want to access female-only hospital wards or intimate care or who do not want to be imprisoned with or strip searched by anyone male. The law still rightly requires there to be services that meet the needs of trans people and organisations could of course opt to provide some services on the basis of the gender in which people identify, but not at the expense of single-sex provision for women who need it.
This has not stopped some LGBT charities reacting with shamefully irresponsible levels of hyperbole. Mermaids has accused the EHRC of “seeking to strip trans people’s rights”; the chief executive of Stonewall has said it constitutes “a sustained assault on the human rights of trans people”.
I suspect the real beef is the failure of the government and the EHRC to align with their controversial worldview that being a woman is purely a matter of self-identification, rendering biological sex irrelevant. Stonewall has openly campaigned for the Equality Act’s protections for single-sex services to be scrapped and organisations it has advised on equalities law have been found to have wrongly understood and applied the law “as Stonewall would prefer it to be”. Its boss has offensively compared the “gender critical” belief that sex and gender identity are distinct concepts to antisemitism. It has ludicrously tried and failed to get the UN to downgrade its rating of the EHRC as a national equalities regulator for daring to consider the needs of women who believe sex remains relevant.
Stonewall has had an impressively firm grip on how public sector organisations view the law through membership schemes and diversity rankings, which the information commissioner has said gives it “a significant degree of influence” over workplace policies. Even the EHRC, the independent arbiter of how equalities law is applied by public bodies, used to be a member of Stonewall’s scheme, implying there was once a degree of regulatory capture of a body supposed to balance protections for all groups.
But there is a new political consensus emerging that to clarify the Equality Act’s sex-based protections would be a good thing. Labour shadow ministers such as Shabana Mahmood have welcomed the EHRC’s recommendation for a review.
That consensus – encompassing the Conservative government, the opposition and a regulator that has newly rediscovered its independence – is also reflective of public attitudes: research suggests that many people rightly take a “live and let live” approach to how people identify, but believe sex remains relevant in areas such as sport and single-sex spaces.
It remains extraordinary that in a context where campaigners have tried to intimidate people into adopting their worldview on pain of being tarred a bigot, women have been vilified for the moderate opinion shared by many that sex remains relevant in law and society. People have endured bullying and harassment, unlawful workplace discrimination, violent protest and illicit police action. There are important takeaways from this sorry saga: the moral cowardice of leaders in big institutions who allowed this to happen; the insight that frightening people into taking up your cause is no substitute for winning hearts and minds.
But my overwhelming feeling at this advent of compassionate common sense is a massive sense of relief. Relief that we may be approaching a time where we can all acknowledge a disabled woman’s right to turn down intimate care from anyone male alongside the need of a trans survivor of domestic abuse to access appropriate services, and agree both are things a humane society must accommodate.
• Sonia Sodha is an Observer columnist
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