UK equalities watchdog denies that making ‘sex’ mean ‘biological sex’ would harm trans rights

A screenshot of EHRC Chair Kishwer Falkner during a video call.

The Equality and Human Rights Commission (EHRC) has said it does not believe redefining ‘sex’ to mean biological sex would remove legal protections for trans people.

A spokesperson for the EHRC rejected claims made by a coalition of not-for-profit groups – spearheaded by LGBTQ+ advocacy organisation Stonewall – that the watchdog was a “failed institution”.

In an open letter published on Tuesday (9 May), the groups urged the Global Alliance of National Human Rights Institutions (GANHRI) to review the EHRC for “failing to meet its basic duties”.

The signatories went on: “We are conscious that the voices of civil society… have not thus far been enough to convince the EHRC to change its course.”

In response, the commission said its legal duty is to uphold human rights in the UK and that that is the “core [of] everything we do”.

The spokesperson added: “It is categorically not true that clarifying the definition of sex in the Equality Act would remove protections for trans people or cause them harm.

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“It would not remove the protected characteristic of gender reassignment from the act, which would continue to guarantee their rights.”

A trans activist draped in a trans Pride flag.
The EHRC has said it takes actions to protect trans people. (Getty)

The commission signalled its position on changing the definition of sex in the 2010 Equality Act after responding to a request for advice by equalities minister Kemi Badenoch.

Changing the definition could result in “greater legal clarity” and would “exclude trans women from women’s sports”, the EHRC told the minister.

EHRC said its decisions are based on a “duty to advise on how best to strike an appropriate balance“.

“In some cases, we do so in difficult, technical areas of the law that can attract strong views and disagreement,” it continued. “We provide this advice impartially, even when matters might be contentious.

“We will continue to listen to the view of all groups, including the LGBT community, as we have done regularly throughout.”

However, signatories of Stonewall’s open letter – which include the Equality Network, Mermaids and Trans Media Watch – state that the proposed change would be “unnecessary, unworkable and unfair”.

The EHRC pointed to its “A-status” rating as a national human rights institution by the UN, adding that GANHRI has made a number of recommendations to “strengthen our powers and keep on making a difference to the lives of everybody across Britain.”

On the its recent advice regarding the definition of sex within the Equality Act, the recommendations “took into account a concern that the law, as it stands, does not reflect the reality of modern life for trans people”, the spokesperson added.

“For example, today many trans people do not identify themselves as transitioning from one gender to another, but many identify with a more fluid gender identity or without reference to a binary gender at all.

“For this and other reasons, the vast majority of trans people do not have a Gender Recognition Certificate (GRC), yet there is a disparity between the rights of trans people with GRCs and those without under the Equality Act.”

The spokesperson went on to say that current definitions could make it “difficult for individuals to understand their rights” and that changing the definition to mean biological sex would help “employers, service providers and others.”

The original recommendations also noted several other “benefits” to the change would include excluding trans women from single-sex spaces and female sporting competitions entirely by allowing organisations to make what it describes as a space for “biological women”.

EHRC argues it does not promote ‘the exclusion of trans people’

The EHRC refuted accusations that it “promotes the exclusion of trans people” in its work.

In the recent open letter, Stonewall chief executive, Nancy Kelley, said that the commission’s recommendations would “effectively force most trans people to detransition,” saying that this situation that would “shame our nation“.

In response, the EHRC said it was disappointed to hear that LGBTQ+ groups believe the organisation’s recommendations would “make it impossible for them to live their daily lives safely and with dignity”.

It added: “We continue to take action to protect trans people, including successfully undertaking legal work to support trans people who have been discriminated against in their place of work or education, in their access to health and social services, and in other areas of their life.”

The equality watchdog specifically cited its work with ministers on “long waiting times and insufficient advice and support”.

However, there appears to be no published or updated reports discussing NHS waiting times for trans people available on the EHRC website after 2020, following the appointment of Baroness Kishwer Falkner as chairwoman of the watchdog.

Despite this, the spokesperson told PinkNews that the EHRC had “raised specific issues such as the government’s ‘list of specialist practitioners’ for providing a gender dysphoria diagnosis,” which the organisation admitted is a “barrier for some trans people in obtaining a GRC”.