UK Equality Act could be amended to make ‘sex’ mean ‘biological sex’

Kemi Badenoch wearing a black blazer and red blouse walking outdoors.

The Equality and Human Rights Commission has published a letter largely advocating for sex to be defined as “biological sex” in UK equalities law.

The EHRC published a letter to women and equalities minister Kemi Badenoch on Tuesday (4 April), in response to a request for advice on a potential amendment to the Equality Act.

Chair Baroness Kishwer Falkner wrote that while there “is no straightforward balance”, the equalities watchdog believes that defining sex as “biological sex” would “bring greater legal clarity” in eight areas.

She included several examples, including that the change would make it easier to “exclude trans women from women’s sport” and from single-sex spaces.

The letter acknowledges that currently, trans men and women who hold a Gender Recognition Certificate (GRC) have their gender recognised as their legal sex.

Changing the definition of sex would effectively nullify this.

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“As things stand, a women’s book club, for instance, may have to admit a trans woman who had obtained a GRC,” Falkner wrote. “On the biological definition, it could restrict membership to biological women.”

Falkner also said that changing the definition of sex would make it easier to exclude trans people from lesbian and gay groups, echoing rhetoric pushed by several trans-exclusionary campaign groups, and would “correct” the “perceived anomaly” of trans men and women being allowed to hold job positions restricted to their gender.

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The letter lays out what the EHRC considers the three potential disadvantages to the change: that a trans man would be able to bring an equal pay claim by citing a cis male paid more, and that a trans man would be able to bring a direct or indirect sex discrimination claim “as a woman”.

Falkner added: “On balance, we believe that redefining ‘sex’ in EqA to mean biological sex would create rationalisations, simplifications, clarity and/or reductions in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers. It therefore merits further consideration.”

Her letter recommended “detailed policy and legal analysis” before any changes are made. It’s understood that no decision has been made on the matter by the government.

In her 21 February request for guidance, Badenoch directly referenced Scotland’s recent passing of the Gender Recognition Reform bill, which was blocked by UK officials, as an indicator for wanting to redefine sex in the Equality Act.

“Women and Equalities Select Committee discussed this in a recent evidence taking session,” Badenoch wrote. “The matter has been the subject of a petition to parliament advocating an update to the Equality Act to make clear that the characteristic of ‘sex’ refers to ‘biological sex.'”

LGBTQ+ charity Stonewall said the EHRC’s response “fails to recognise that the Equality Act 2010 has successfully supported businesses and service providers to challenge discrimination.”

It added that the watchdog was “fundamentally wrong” to imply that trans women do not experience sexism due to ‘biological sex.’

“We would expect the EHRC to make further reference to some of the challenges defining ‘biological’ sex, how these measures would interact with the Equality Act’s protection for people who are ‘percieved’ to hold protected characteristics.

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“This move risks opening yet another chapter in a manufactured culture war that will see little benefit to women – cis and trans alike.”

Trans activist Katy Montgomerie said that the “bleak” call to “totally [gut] trans protections” from the Equality Act 2010 was “everything we’ve been saying they want.

A government spokesperson told PinkNews: “We are committed to protecting women’s rights and the Minister for Women and Equalities regularly seeks advice from the independent equality regulator as part of her role.

“We have received advice from the Equality and Human Rights Commission on the Equality Act and will consider it in the usual way.”

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