In the UK, as in most developed nations, we are opposed to discrimination. We do not like the idea of someone being treated differently because of a characteristic they have. This is made manifest in law by the Equality Act 2010, which protects people from unequal treatment based on nine protected characteristics – age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. If your employer decides to fire you because you became pregnant or converted to Judaism, if you are refused service in a shop because of your skin colour or sexuality, or if you are discriminated against in any other way based on one of these protected characteristics, you can challenge that using the Equality Act.
A major problem occurs when the protected characteristics have their definition expanded. As Konstantin Kisin points out in his book ‘An Immigrant’s Love Letter to the West’, changing language changes laws without having to go through the hassle of legislative scrutiny. The definition of sex has been expanded to mean ‘legal sex’, which is the sex recorded on documents such as a birth certificate and a marriage certificate. What this means is that it can be changed by acquiring a Gender Recognition Certificate. Now the Equality Act protects trans women from being discriminated against on the basis that they are women, despite the fact they are biologically male.
This creates a problem of competing rights claims. Single sex spaces are undermined as anyone who stops trans women accessing women-only spaces could fall foul of the Equality Act. Public toilets are the obvious example, but there are also women’s prisons, women’s sports, women-only jobs and women-only shelters. Male puberty gives men physiological advantages over women that hormone treatments cannot reverse, so allowing trans women to compete in women’s sports can be unfair to their competitors, and even dangerous in high-contact sports.
A woman who has been the victim of rape or domestic abuse may seek out a women-only support service where the presence of a male may make her uncomfortable, so shelters that also accept trans women as service users and trans women as staff could be detrimental to those women. Of course, those services should be available to trans women, but there should be an option that is female-only, such as Beira’s Place – the service JK Rowling set up in Edinburgh.
This all came to a head recently with Scotland’s Gender Recognition Reform Bill, which would have enshrined gender self-identification into law – removing the need for a diagnosis of gender dysphoria and significantly speeding up the process of obtaining a Gender Recognition Certificate and thus legally changing sex. The UK Government used Section 35 of the Scotland Act to stop the bill being made into law, arguing that it conflicted with reserved matters – namely the Equality Act. While a GRC is not absolutely necessary to access many single-sex spaces reserved for the opposite sex, Scotland’s proposed reforms could have potentially removed any remaining barriers and made it much easier for predatory men to abuse the GRC process to gain access to women’s spaces. Just to clarify, this is not an argument that trans women are predatory men, simply that the proposed reforms would have removed any real burdens to predatory men obtaining a GRC and getting an all-access pass to women-only spaces.
Recognising the issues caused by the lack of clarity around the definition of sex in law, campaign group Sex Matters launched a petition for the Equality Act to be amended to clarify that sex refers to biological sex. That petition now has over 100,000 signatures and will be considered for a debate in Parliament. The Minister for Women and Equalities wrote a letter to the Equality and Human Rights Commission asking for their considered advice on this proposal, and the EHRC responded with a detailed consideration of the potential benefits and pitfalls of this amendment.
The EHRC states this change could clarify the application of equality law around the following areas:
- pregnancy and maternity – expanding protections to trans men who get pregnant,
- freedom of association for men and women respectively – allowing women’s groups to exclude trans women on the basis of them being biologically male. This also applies to gay and lesbian groups,
- positive action – shifting the application of women-only shortlists and other such action to increase female participation from trans women to trans men,
- occupational requirements – allowing employers to restrict certain jobs to women only,
- single sex services – allowing service providers to maintain women-only areas, such as a women-only hospital wards, and excluding trans women from these spaces,
- sport – allowing organisers to keep trans women out of women’s sports in order to maintain fairness and safety for the female participants,
- data collection – research can be distorted by the inclusion of trans men in the male category and trans women in the female. This amendment would help resolve those distortions.
The EHRC does state that this change could create ambiguity or disadvantage in terms of equal pay provisions and direct or indirect discrimination. Currently, a trans woman can bring an action if a man is getting paid more than them for the same work or if they face direct or indirect discrimination as a woman. This amendment means they are no longer considered women under the Equality Act so it would shift those protections from trans women to trans men. Ultimately, the EHRC concluded this change to the Equality Act merited further consideration.
This letter from the EHRC and the Government’s consideration of these proposals have faced backlash from such actors as Pink News and Stonewall, but for no good reason. To reiterate, trans people already have protection from discrimination under the Equality Act – gender reassignment is a protected characteristic. This protection does not depend on them having a Gender Recognition Certificate – as soon as a person announces they are trans, they have these protections as a trans person. This amendment would simply change their sex-based protections around, so trans women would no longer have protections as women, but as men, and trans men would no longer have protections as men, but as women.
Trans people would not lose rights as a result of this amendment. Trans women would still be protected against unequal pay based on sex, but the comparator would be women and not men. But they would also be protected against unequal pay based on gender reassignment, in which case the comparator would be people who are not trans – men or women. The amendment would also give greater clarity around pregnancy and maternity protections – trans women cannot get pregnant, trans men can.
A concern trans activists have is about trans women losing access to women-only spaces. Trans women could be made to feel very uncomfortable if they have to use men’s public bathrooms or changing rooms. The solution to this so far has been to allow trans women to use women’s spaces, but this can equally make women feel uncomfortable and this is made worse by gender self-id where a male who has not undergone any transition can access women’s spaces by simply claiming to be a trans woman. This is clearly the wrong solution. One sensible solution is third spaces. This could mean unisex bathrooms where anyone who feels comfortable sharing a space with the opposite sex can do so, as long as there are single sex bathrooms available too. Or it could mean an accessible toilet, where there is no chance of anyone else of either sex also coming in.
Of course, public bathrooms are not the only space where this matters, but the provisions in each space can and should be carefully considered so as to accommodate everyone in the best way possible. Clarifying sex to mean biological sex in the Equality Act is the starting point for this process. It gives women their single-sex spaces back while maintaining protections for trans people. The potential ambiguity and disadvantages the EHRC mentioned do not cause the removal of rights and there are solutions to the potential pitfalls that can be figured out as part of the legislative process. The good far outweighs the bad, and the bad is fixable, so the Government should do it.
