It is not uncommon for people’s fundamental rights to come into conflict. Democracies need legal frameworks and judicial systems that enable these conflicts to be resolved fairly and with civility. In the UK, the Equality Act 2010 provides a robust legal framework that protects people against discrimination and helps balance rights when they are in conflict. It protects people against discrimination based on nine “protected characteristics” – including sex and gender reassignment – and sets out important exceptions that allow for single-sex services, spaces and sports as a proportionate way of achieving a legitimate aim.
The Equality and Human Rights Commission (EHRC) is the statutory regulator of the Equality Act. Last week, it told the Scottish government that its proposed reforms to the Gender Recognition Act 2004, which allows trans people to change the way their sex is recorded for legal purposes, should be paused because the consultation on these changes has not adequately taken into account their impact on women’s sex-based rights. The Scottish government is proposing to move to a system whereby people can change their sex for legal purposes through self-declaration, instead of needing a medical diagnosis of gender dysphoria.
The EHRC is right that these reforms have implications for sex-based rights that have not been considered. There is not yet enough case law to fully understand how the Equality Act and the Gender Recognition Act intersect, but enabling people to change their legal sex through self-ID could in practice have significant consequences for the threshold at which it is lawful to exclude those who are biologically male from female-only spaces, on sex discrimination and equal pay cases, and on data collection.
Both trans rights and women’s sex-based rights should be robustly defended. It should be a source of pride that the UK was one of the first countries to enshrine legal protection against discrimination for trans people in 1999; no such federal protection exists in the US. Trans people can change their sex marker on many official documents, including their passport, without undergoing the legal process to change their sex. Trans people face unacceptable levels of societal prejudice as a result of their gender non-conformity, and waiting lists for trans health services are far too long: these very much need addressing.
But because reforming the Gender Recognition Act will affect another protected characteristic, sex, it is critically important that any proposals to reform it in the UK are informed by proper consultation with all those affected. That has not happened in Scotland. Instead, Nicola Sturgeon has simply denied such a conflict exists. Women raising legitimate concerns that opinion polls show are widely shared have been tarnished as “transphobic” by Scottish politicians.
This is politicians fomenting rather than diffusing contested debates. It has created a culture where women of the view that biological sex cannot be wholly replaced by gender identity in law – a belief itself protected by equalities legislation – get harassed out of jobs and visited by the police as a result of expressing lawful and legitimate views. Everyone loses: in a world where some people are bullied out of the democratic process of debate and consultation, it is impossible to build social consensus around the balancing of rights of two groups facing significant discrimination.
The EHRC’s own 2018 response to the Conservative government’s proposals to introduce self-ID in England and Wales – now dropped – also underplayed their impacts on the Equality Act. In doing so, it failed its statutory duty to protect everyone at risk from discrimination and foster good relations between groups. Now under new leadership, the EHRC’s reassertion of its role as a fair and impartial regulator of the rights of both trans people and women is overdue but welcome.
