EHRC letter on sex and the Equality Act
14 April 2023
The Equality and Human Rights Commission has written a letter to Kemi Badenoch (the Minister for Women and Equalities) on the definition of “sex” in the Equality Act 2010.
This article looks at whether the letter from the Equality and Human Rights Commission (EHRC) changes anything about the legal protections for trans people in the workplace and in the provision of services, and what it means for employers’ and service providers’ approach to inclusion.
The legal background
Under the Equality Act 2010, trans people (who meet a wide legal definition) are protected from discrimination. This means that employers and service providers are under a duty to prevent transphobic harassment and not to act in a way that discriminates against people within the trans communities.
Under a separate piece of legislation (the Gender Recognition Act 2004, GRA), trans people who have obtained a certificate called a Gender Recognition Certificate (GRC) are to be treated for all purposes as their affirmed gender. For example, a trans man who has a GRC is to be treated as legally male. The GRA came into force in response to a ruling from the European Court of Human Rights that a trans person’s inability to change their legal sex was a breach of their human rights, including the right to private life. This led to the introduction of GRCs as a way to formally document a change to someone’s sex for all purposes, including in the eyes of the law.
The Equality Act also protects against discrimination on grounds of “sex”. However, “sex” is not clearly defined and the issue of what it means has lately come under intense media commentary. In particular, there is wide public questioning about whether “sex” under the Equality Act should include trans men and women as their affirmed gender – including those who have a GRC.
The law as it stands does not clearly differentiate between “sex” and “gender”; in fact, the Equality Act and GRA seem to use these terms interchangeably in some cases.
The EHRC’s letter – what does it say?
The EHRC’s letter to Kemi Badenoch examines whether “sex” should be defined as “biological sex” in the Equality Act, and concludes that doing so would bring greater legal clarity in some areas. If this were taken up and implemented through parliament, this would mean that trans people (including those with a GRC) would essentially be treated as their assigned gender at birth for Equality Act purposes, rather than as their affirmed gender. Put simply, a trans man would be treated as a woman for the purposes of the Act, and a trans woman as a man. This would be the case regardless of how long someone had been presenting as their affirmed gender, whether they had undergone any elements of medical or social transition, or whether they had a GRC.
The letter sets out various examples of areas where the EHRC says a definition based on biological sex would clarify the law. In the context of employment, these are: pregnancy and maternity protection for trans men; preventing trans women from benefitting from positive action measures aimed at women; and enabling employers to restrict positions to women or men. The letter also refers to freedom of association for lesbians/gay men and women/men, single and separate sex services, sport and data collection.
Unfortunately, the analysis in the letter is quite brief and does not discuss the details of the law or alternative ways of addressing these issues.
For example, trans men could simply be included in the provisions providing pregnancy and maternity protection, without the need for them to be defined as women through “biological sex”.
Similarly, the Equality Act already enables jobs to be restricted to women or men in narrow circumstances and where this is an objectively justified “occupational requirement”. Trans people (including those with a GRC) can be excluded from such roles in limited circumstances and where an employer can show this exclusion is objectively justified. The appendix to the letter does acknowledge this, but says it is an additional step which “may create prohibitive risks or costs”, and use of biological sex would provide the “starting point”.
If the EHRC is suggesting that a biological sex definition means that trans people can be excluded from single-sex jobs without the need for justification by the employer, this would be a significant change to the current law. However, our view is that the Equality Act potentially protects trans people from discrimination in these circumstances irrespective of their “legal” or “biological” sex. Excluding a trans person (with or without a GRC) from a female-only role would be unlawful discrimination on the basis of their trans status, subject to justification as an occupational requirement. The position is similar for service providers – trans people (with or without a GRC) are protected from discrimination, but can be excluded from single-sex services in narrow circumstances and where this is objectively justified.
No change to the law
It’s important to bear in mind that the EHRC’s letter is simply an initial response on the benefits of using a definition of biological sex, and does not change the legal position. In fact, the letter makes it very clear that “detailed policy and legal analysis” would be recommended before any changes to the law were considered. It is also important to take into account the fact that this letter was a response to a letter from Kemi Badenoch which asked a specific question about the benefits or otherwise of amending the current definition of sex.
Employers and service providers are still subject to all the same obligations to protect against discrimination, and there is no suggestion that this will change in the near future. We would therefore recommend extreme caution to any employer or service provider relying on the letter as grounds for changing any of its internal approaches or policies to trans-inclusion – not least because of the general response to the letter from the LGBT+ communities and more widely.
Our article here provides useful guidance on the law as it stands and what employers can do to support trans and non-binary people in the workplace.
Reception of the letter
This issue tends to be pitched (somewhat simplistically) as a clash between trans rights and women’s rights. While the letter has been welcomed by some groups and commentators as recognising concerns about safety and dignity for women, it has come under criticism from a range of LGBT+ rights organisations and other commentators, many of whom argue that defining “sex” in this way would significantly erode the legal rights of trans people. A petition stating that “The proposed change would remove a legal protection for trans people and encourage discrimination. We ask the Government to refuse this change to the Equality Act 2010” has received over 130,000 signatures and will now be given a date for parliamentary debate.
It can also be argued that the proposal would overturn some of the purposes of the GRA. If having a GRC would not affect someone’s sex as viewed by the law, it is challenging to see what the purpose of it would be - and how that would marry up with the human rights requirement which led to the birth of the GRA. The letter even argues that human rights law may require “sex” to be defined as “biological sex”, although the basis for this is unclear. It is worth bearing in mind that the Equality Act was drafted after the GRA, and could have specified that “sex” should mean “biological sex” had that been parliament’s intention.
The letter’s recommendation is also at odds with recent guidance from Scotland, where a 2022 judicial review rejected the proposal that “sex” should mean “biological sex” under the Equality Act, and held that trans people with a GRC are to be treated as their legal (affirmed) sex. Although this Scottish case does not bind English and Welsh courts, we might expect it to be treated as persuasive in English and Welsh cases.
We currently await the government’s response, to find out whether any changes might come out of this letter or from the wider discussions on this topic. With the Scottish government’s announcement that it will bring a legal challenge against the UK government’s block of its gender reform bill, it is clear that this issue will remain the subject of political debate.
In any event, it is difficult to envisage how any changes to the law along the lines the letter suggests might be implemented. With no scientific agreement about what “biological sex” means and no clear way for employers or service providers to check this, there are serious questions around practical application. It seems likely that any “checks” would necessarily be invasive and would impact cis and trans people alike, in particular those whose presentation is gender non-conforming.
Employers may wish to consider reaching out to their internal LGBT+ and broader DE&I networks, to offer support in what is likely to be a challenging time for many.