THE UK Government is considering changing the legal definition of “sex” in the Equality Act.
While the Equality and Human Rights Commission (EHRC) has said such a change could bring “greater legal clarity” in areas such as the provision of single-sex spaces, LGBT+ charity Stonewall said the move risks “opening yet another chapter in a manufactured culture war”.
But what would such a change mean for both women and transgender people in Scotland?
What is the Equality Act?
The Equality Act 2010 aims to protect citizens from unlawful treatment resulting from discrimination of person’s characteristics. These “protected characteristics” include age, disability, gender reassignment, marriage, pregnancy, race, religion, sex and sexuality.
It was brought in to protect people from the potential harms caused by discrimination (such as losing your job for being pregnant) and aims to enshrine equal opportunities in both the workplace and wider society.
Why bother changing it?
The Scottish Government repeatedly stated during debates in Holyrood that the Gender Recognition Reform (Scotland) Bill, which was passed by a majority of MSPs last year before being blocked by the UK Government, interacted with the Equality Act in only a minimal fashion.
Indeed, while the legislation changed the process of legally changing one’s gender, it doesn’t alter the protections already offered to transgender people in the Equality Act.
However, after blocking the legislation Scotland Secretary Alister Jack (below) said the UK Government felt it would have “serious adverse impact” on the Equality Act – including on the provision of single-sex clubs, associations and schools.
Women and Equalities Minister Kemi Badenoch then tasked the EHRC with considering “the benefits or otherwise” of amending the act’s current definition of “sex” in light of Scotland’s move to reform the process of gender recognition.
The chairwoman of EHRC, Baroness Falkner, has now said that because the Equality Act uses the terms “sex” and “gender” interchangeably, changing the definition of “sex” to refer strictly to “biological sex” – that is, the sex a person is assigned at birth – could make the provision of single-sex spaces that exclude transgender women easier.
What will it mean for women and transgender people if it is changed?
Last year, gender critical campaign group For Women Scotland lost a court case in Scotland over the legal definition of the word “woman” when it comes to legislation that aims to ensure gender balance on public boards.
In her judgment Lady Haldane stated: “The meaning of sex for the purposes of the 2010 Act, 'sex' is not limited to biological or birth sex, but includes those in possession of a Gender Recognition Certificate (GRC) obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex."
According to LGBT rights charity the Equality Network, this corresponded with the existing exemptions in the Equality Act – which allow single-sex services to exclude trans people when it is “proportionate to a legitimate aim”.
If the UK Government changes the definition of “sex” then there would be no need for organisations or clubs to prove they have a “legitimate aim” when excluding transgender people.
In fact, it could result in a transfer of rights from trans women to trans men – for example, trans men would be allowed to be considered in “women-only” shortlists for things such as literary prizes because of their assigned sex at birth.
Transgender people could also be barred from accessing public bathrooms that accord with their acquired gender, a situation which LGBT charities say could jeopardise the safety of trans people.
