The Equality and Human Rights Commission (EHRC) have published a letter they have sent to Kemi Badenoch MP, Minister for Women and Equalities, recommending that the government consider redefining "sex" in the Equality Act 2010 (EqA 2010) to mean biological sex. The recommendation was made in response to a request by Ms Badenoch for the EHRC's opinion on whether the meaning of "sex" in the EqA 2010 was sufficiently clear.

 

The EHRC noted that sex and gender reassignment are both protected characteristics under the EqA 2010. However, there is no actual definition of "sex" in the EqA 2010, and some of the other language used in the EqA 2010 is outdated. It may not be clear what protection it offers (or does not offer) to trans people.

 

In addition, under the Gender Recognition Act 2004, a trans person with a gender recognition certificate (GRC) must be treated according to their acquired gender for all purposes. This concept of "legal sex" has been recognised by the courts in relation to the interpretation of the EqA 2010. However, the EHRC acknowledges that this has made the meaning of "sex" in the EqA 2010 ambiguous so that it can be hard for service providers to apply the law.

 

Although there is no straightforward solution to this issue, the EHRC explains that, in its view, a biological definition of "sex" in the EqA 2010 would create legal clarity in eight areas (pregnancy and maternity, freedom of association for lesbians and gay men, freedom of association for women and men, positive action, occupational requirements, single sex and separate sex services, sport, and data collection) while creating ambiguity or being potentially disadvantageous in three (equal pay, direct sex discrimination and indirect sex discrimination). Therefore, on balance, it merits further consideration by the government.

 

However, the EHRC observes that the implications of such a change would need to be carefully considered, particularly in regard to any possible disadvantages for trans men and trans women. 

With this issue very likely to form a key part of the next general election battle (noting the differing positions being taken by the two main political parties, and of course the fall-out which followed the position adopted by Scotland) the EHRC's intervention is a key, early indicator of how things may move forward, and came as a surprise to many who had assumed the EHRC might have taken a different view.