What is a woman? The answer to this question has become a highly contentious political issue. It lies at the heart of a rights conflict that has turned toxic, between those who believe someone’s self-declared gender identity should override biological sex for the purposes of single-sex services and sports and those who think biological sex remains a relevant concept in law and society. That conflict comes to a head this week in Scotland, where MSPs will vote on the SNP’s reforms to require people to be legally treated as the opposite sex on the basis of self-identification.
The UK was one of the first countries to introduce important legal protections against discrimination for trans people in 1999; these are today enshrined in the 2010 Equality Act under the protected characteristic of “gender reassignment”. It also protects women against sex discrimination and sets out that it is lawful to provide female-only services and sports – excluding anyone male, regardless of gender identity – if they are a proportionate way of achieving a legitimate aim. It is a sophisticated legal balancing act. A small group of trans people – around 5,000 – have, however, changed their sex for most legal purposes under provisions in the 2004 Gender Recognition Act. Obtaining a gender recognition certificate (GRC) requires a medical diagnosis of gender dysphoria and proof that someone has been living as the opposite sex for at least two years. But it has been unclear whether a GRC changes someone’s sex for the purposes of the Equality Act.
