The EHRC’s letter about redefining ‘sex’ – what is it, and what does it do?

Kemi Badenoch in the context of an EHRC letter over trans people
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On Monday 3 April, the EHRC (Equality and Human Rights Commission) published a letter concerning a potential change in the legal definition of ‘sex’ in the Equality Act 2010 (EA). This would essentially redefine ‘sex’ to mean ‘biological sex’. In turn, this would strip trans people of a broad swathe of their current legal protections.

The EHRC’s letter

The EHRC’s letter was in response to a request from women and equalities minister Kemi Badenoch – herself a well-known transphobe. The response itself is purely advisory, and does not carry legal force. It has less weight, for example, than the recent guidance issued by the EHRC on single-sex spaces.

Instead, it’s intended to provide expertise on whether such a change in the law would be possible and favourable. On this, Kishwer Falkner – chair of the EHRC – warned that:

A change to the Equality Act 2010, so that the protected characteristic of ‘sex’ means biological sex, could bring clarity in a number of areas, but potential ambiguity in others.

She also added that:

Should they wish to pursue work in this area, we recommend detailed policy and legal analysis be undertaken, in compliance with the Public Sector Equality Duty and with due regard to any possible disadvantages for trans men and trans women.

As things stand, this letter does nothing except signalling that it is an avenue the government is actively investigating. Whilst this is terrifying in itself, it doesn’t change anything immediately.

Read on...

The current law

Currently, trans people are protected by the EA according to the protected characteristic of gender reassignment, i.e., their status as being trans. This is the feature of the EA that makes it illegal to discriminate against trans people for reasons of their being trans. Notably, this applies whether or not the individual has already medically transitioned:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

On top of this, trans people – like everyone else – are then also protected according to their legal sex. The Gender Recognition Act 2004 (GRA) means that the legal sex of a trans person who has a gender recognition certificate (GRC) essentially becomes their gender. The EHRC’s own letter stated that:

This concept of ‘legal sex’ has been confirmed by the courts in their interpretation of the meaning of the protected characteristic of sex in the EqA [Equality Act]. The EHRC has consistently understood this to be the position in the law as it currently stands and we have based our guidance and interventions until now on that understanding.

In this way, a trans man can attain a GRC and be recognised as a man for things like his wedding and death registry. Crucially, this also means that a trans woman with a GRC is protected by the EA both because she is a woman and because she is trans.

What would it do?

The change being pursued by Badenoch and investigated by the EHRC would essentially do away with this recognition of a change in legal sex. It stated that:

There is no straightforward balance, but we have come to the view that if ‘sex’ is defined as biological sex for the purposes of EqA, this would bring greater legal clarity in eight areas.

These proposed areas of ‘clarity’ include things like maternity, affirmative action, and freedom of association. However, much of the outcry has focussed on single-sex space provisions – things like hospital wards and toilets. The letter stated:

At present, the starting point is that a trans woman with a GRC can access a ‘women-only’ service. The service provider would have to conduct a careful balancing exercise to justify excluding all trans women. A biological definition of sex would make it simpler to make a women’s-only ward a space for biological women.

Currently, a provider can choose to exclude trans people from single-sex spaces provided that doing so is “proportionate means of achieving a legitimate aim“. The proposed redefinition of ‘sex’ would remove this requirement of proportionality. Instead, providers could choose to exclude trans men from men’s spaces and trans women from women’s spaces without any further justification.

This could make public life extremely difficult for trans people. For instance, it would require research and foreknowledge of whether a particular establishment would force them to use incorrectly gendered facilities. If so, trans men would be forced to use the women’s bathrooms, and trans women the men’s. Both of these situations carry various increased dangers for all concerned, and would be incredibly difficult to police in practice.

How could it happen?

The EA is a mammoth piece of legislation. It affects the rights of nine different protected classes, including sex and gender reassignment. The EHRC’s letter also warned that the change in definition would likely have knock-on effects:

There are also likely to be some consequential amendments to the EqA that would be required, the detail of which we have not covered in this short initial response.

An update to the EA of this magnitude would need new primary legislation. This means that a new bill would have to be passed by the government – usually a lengthy process. Alternatively, the amendment could be added to another relevant bill which has already been scheduled.

However, the next general election is set to take place no later than 28 January 2025. There are also debates and hearings that would likely take place around such a significant change in fundamental equalities law. This would mean that the Tories would be extremely hard pushed to pass the change before the election – even without election campaigning as a distraction.

Campaigning issue

As such, it’s more likely that the EA amendment will become a campaigning issue or election pledge. In turn, this would whip up even more fear and hatred around trans people.

This would be incredibly dangerous at a time when anti-LGBTQ+ discrimination is already on the rise. Reports of queerphobic hate crimes rose by 40% in the last year alone. A election-driven media frenzy would only throw fuel on this fire.

Seven of the EHRC’s senior officials have already stepped down in recent weeks over the organisation’s increased transphobia. Trans people in the UK are rightfully terrified about their government’s actions. Even if the proposed change comes to nothing, the next few years carry little hope of improvement for trans lives in the UK.

Featured image via Youtube/ The Telegraph

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