Following advice from the English Human Rights Commission (EHRC), the UK government has acknowledged that it is looking at changing definitions used in the Equality Act, a move which could dramatically reduce the number of contexts in which the rights of trans people are protected under the law.
“We have come to the view that if ‘sex’ is defined as biological sex for the purposes of EqA, this would bring greater legal clarity,” wrote EHRC Chair Kishwer Falkner in a letter to Kemi Badenoch, the UK government Minister for Women and Equalities.
Rishi Sunak has previously said that he considers the area “sensitive and complicated,” but has pledged to reinforce biologically-based definitions of sex.
Because the Equality Act applies right across the UK, any change made on this basis would also affect Scotland, despite the SHRC differing strongly in its views on trans people’s human rights.
What is biological sex?
Asked by Helen Belcher of TransActual UK what was meant by the term ‘biological sex’, Melanie Field of the EHRC acknowledged that there is currently no definition in law and said “The discussions that we’ve had have been…on the basis that sex recorded at birth is a proxy for biological sex, and that’s the position we’ve set out for existing guidance.” She admitted that further definition would be required.
“By insinuating in its previous advice that organisations should exclude trans people from single sex services and spaces, and now proposing that Parliament actively considers effectively removing trans people from sex-based protections under the Equality Act, the EHRC continues demonstrating its inability to fight for human rights for everybody. Trans people no longer seem to be people in their eyes. Our pains and struggles are seemingly irrelevant,” said Belcher.
Definitions of biological sex have varied widely throughout history and across different cultures, sometimes being based on genitals, sometimes on internal reproductive anatomy and sometimes on chromosomes. Many cultures have recognised this as a fuzzy area and considered personal identity to be another important factor.
The proposed change could also create problems for intersex people and others with variations of sex characteristics (VSC). Despite claims from supporters of the proposed change that all such people are inherently either male or female, it is not clear what would happe to people born with chimerism (a mixture of cells with different genotypes – in this case some with XX chromosomes and some with XY chromosomes) or those with ovotestes (both testicular and ovarian tissue). Some people have been identified as having exclusively XY chromosomes only after getting pregnant and giving birth. Critics have noted that using a strictly chromosomal definition could result in the absurd situation of such women being required to use male facilities.
Is the proposal workable?
Complicating all this, is the fact that the vast majority of people have never had their chromosomes looked at, and we generally interpret one another’s sex based on external characteristics such as height or the presence or absence of breasts. Already, some women have expressed concern that even though they are not trans they may find themselves excluded from women’s spaces because they have broad shoulders or deep voices. It is unclear how people would be expected to prove their sex, and if this would force everyone to carry photographic ID in order to guarantee access to facilities.
At present, there are no laws restricting access to public toilets, the most commonly contested facility. Instead, their use is a matter of custom. For instance, men commonly enter women’s toilets to access baby changing facilities or take their young daughters to the toilet, whilst women commonly enter men’s toilets to avoid queues.
Many lawyers have called into question the practicality of any change to the definition of ‘sex’, which is currently used interchangeably with ‘gender’ across many areas of law. It has been pointed out that a vast number of revisions to existing legislation may be needed in order to ensure that such a change did not create further legal absurdities.
Some called into question the EHRC’s understanding of the Equality Act, noting that Falkner has suggested that the change would make it possible to restrict certain highly sensitive areas of employment to those registered as female or male at birth, something which the Act already allows for. Members of the LGBTQ+ community, meanwhile, expressed concern that Falkner’s letter identified ‘lesbians and gay men’ and ‘women and men’ as two separate categories.
Alongside concern that the proposed change would be unworkable, some critics have suggested that it is not intended to be, and that the primary purpose of the current debate is to distract voters from concerns around the economy and the state of the NHS in the run-up to a General Election. Nevertheless, it has caused serious distress within the trans community.
“It’s not often I cry myself to sleep but I did last night,” said Belcher, referring to the night when she first heard about the EHRC letter. “I’m a tough old cookie. But last night my wife and I were both awake until 3 o’clock in the morning, trying to process at what point do we flee this country.”