Trans women could soon be barred from female-only spaces such as changing rooms, hospital wards and public toilets with the Government pushing forward with plans to alter the Equality Act.
In February, the Women and Equalities Minister, Kemi Badenoch, wrote to the Equality and Human Rights Commission (EHRC) to ask for them for advice on changing the legal definition of sex. She wanted them to consider the implications of changing the wording from “sex” to “biological sex”.
Today, the EHRC has responded to Badenoch saying that changing the legal definition of sex would result in “greater legal clarity” about women-only spaces. In a statement published on the EHRC website, the chairwoman of the commission, Baroness Kishwer Falkner, says that the Government should consider outlining a “biological definition of sex” in the Equality Act.
Backlash following Scotland’s trans inclusive Bill
The issue has been triggered by the Gender Recognition Reform Bill being passed in Scotland and the subsequent high-profile court case revolving around a trans woman who was initially sent to an all-women’s prison despite being convicted of raping two women when she was a man.
The Gender Recognition Reform Bill in Scotland means that it is now easier for transgender people to achieve legal recognition of their acquired gender. Now, people can apply for a Gender Recognition Certificate from the age of 16 and they don’t need to provide evidence of having lived for two years in their acquired gender.
The Bill has been criticised by Badenoch who said that it raised questions about the operation of the Equality Act and whether the definition of sex is “sufficiently clear and strikes the appropriate balance of interests between different protected characteristics.”
What a change in definition would mean
During Rishi Sunak’s campaign to become Conservative leader, he promised to change the Equality Act so that it would provide legal protections for biological women in same-sex safe spaces.
While a slight adjustment to a definition within the Equality Act may seem minor, the ramifications are potentially huge and would fulfil this pledge made by the Prime Minister.
In their response to Kemi Badenoch, the EHRC said that by redefining sex, greater legal clarity would be brought in at least eight areas. They include:
- Pregnancy – Currently, protections and benefits for pregnant women and new mothers don’t cover trans men who are pregnant and whose legal sex is male. Defining ‘sex’ as biological sex would resolve this issue.
- Freedom of association – Currently, private clubs are obliged to accept trans women/men who have a Gender Recognition Certificate (GRC). Changing the law so it reflects biological status, could give these clubs more freedom on who to admit.
- Occupational requirements – Certain job roles are restricted to men-only or women-only. As things stand, certain roles would be open to trans people with a GRC even if they aren’t biologically suitable for the position. A change to the law would amend this.
- Women-only wards at hospitals – At present, trans women with a GRC can gain access to women-only wards at hospitals. Through this suggested law change, they would no longer be able to.
- Sport – At the moment there is nothing to stop trans men with a GRC from competing in women’s sports. Due to certain biological characteristics, this can create an uneven playing field. Changing the law would allow governing bodies to restrict events to biological women or men only.
Warnings from the EHRC
The commission has also provided a few warnings to the Government about the potential dangers of changing the wording around sex. They are as follows:
- Equal pay provisions – At present, a trans woman with a GRC can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a GRC could not. The proposed biological definition would reverse this situation.
- Direct sex discrimination – At present, a trans woman with a GRC can bring a claim of direct sex discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation.
- Indirect sex discrimination – At present, a trans woman with a GRC could bring a claim of indirect discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation.
The recommendations from the EHRC haven’t been received well by many LGBT+ groups. The LGBTQ+ charity Stonewall has labelled the recommendations as “risky” and have predicted that they will “open up yet another chapter in a manufactured culture war that will see little benefit to women, cis and trans alike.”
With hate crime against trans people on the rise, the Government should consider further changes and more sensitive wording to ensure that these changes do not result in a hate campaign against trans people in the UK.