Dear Baroness Faulkner,
We are writing to express our deep concern with the response given to Rt Hon Kemi Badenoch MP (Minister for Women and Equalities) following her request for clarification on the EHRC’s interpretation of the definition of ‘sex’ in relation to the Equality Act 2010 (EqA). As we detail below, the EHRC’s response demonstrates a profound misunderstanding of the needs of transgender and cisgender people alike, whilst too supporting a change that is unimplementable.
We urgently call for the guidance issued to the Rt Hon Kemi Badenoch MP (Minister for Women and Equalities) to be retracted, and to be replaced by a redraft which is strongly informed by engagement with those communities likely to be impacted by any amendment to the EqA, and compatible with international human rights standards.
The EqA is a landmark piece of legislation which protects us all. Proposing alterations to this legislation without the support of thorough and comprehensive public consultation and research would go against the foundational principles of the EHRC.
Below, we outline numerous arguments which refute those utilised by the EHRC to support the aforementioned alteration to the EqA. We demonstrate that there is no significant precedent supporting this change before discussing the numerous impracticalities in implementing the suggested change. We conclude by demonstrating that in the eight highlighted areas, this change will bring greater marginalisation, discrimination, and obscurity over the clarity which the EHRC suggests.
There is no precedent that is clear enough to justify such significant changes in this area of the EqA.
1.1. Legal Precedent:
In the letter to the Rt Hon Kemi Badenoch (Minister for Women and Equalities), the EHRC states that ‘[transgender and non-binary people’s] legal protection in the [Equality] Act may be unclear’. However, the ‘Taylor v. Jaguar Land Rover Ltd’ (2020) ruling clearly stated that non-binary and gender fluid identities should be protected by the protected characteristic of gender reassignment. We recognise that this precedent was set by one case. However, if the EHRC were truly acting to protect marginalised people and reduce discrimination, they would follow this precedent by opting for a definition of sex that is far less restrictive than the one proposed.
Indeed, by proposing that the definition of sex in the EqA should be read as biological sex, the EHRC appears to be diverging from robust legal precedent set before the Equality Act was even passed, during ‘A v. West Yorkshire Police’ (1999). In this case, the Employment Tribunal, other appeal courts and the House of Lords ruled that a transgender person ‘who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender’ should be treated as the same sex as their lived gender.
We are further alarmed by the belief the EHRC have expressed that this is ‘an area of balancing competing rights.’ There is no indisputable evidence to support the claim that awarding and protecting the rights of transgender people has or will compete with or undermine the rights of another population.
It is also essential to note that the proposals made in the EHRC’s letter would directly lead to legal uncertainty. This would primarily occur through overturning several aspects of the purpose of the Gender Recognition Act (GRA) whilst making it legally possible to discriminate against transgender people in a wide range of circumstances.
1.2. Social Precedent:
Both historically and in the present day, major media outlets have repeatedly portrayed transgender people in a negative manner, arguing for the removal of their rights in order to, supposedly, protect those of the wider population1, 2.. The prevalence of these anti-transgender publications may lead to the incorrect assumption that the majority of the British public are opposed to the awarding of greater protection and rights to transgender people. However, independent public polling has illustrated that the moral panic created by anti-transgender reporting in the media is not founded in the legitimate concerns of the British public. For example, when polled on what they consider to be the most pressing issues facing the nation today, the British public do not rank transgender people as a remotely significant ‘issue’. Instead, the UK public recognise that transgender rights are increasingly at risk due to the current social, political, and media climate3 – which is sadly supported by Government and Crown Prosecution Service data on the sharp rise in transphobic hate crimes4.
Result of public polling leads us to question the precedence for the suggested change to the EqA. In the letter to the Rt Hon Kemi Badenoch (Minister for Women and Equalities), the EHRC states that:
‘The consultation for our Strategic Plan revealed that, out of all protected characteristics, sex was important to the highest proportion of respondents, and that many respondents were concerned about the interaction between the protected characteristics of gender reassignment and sex’.
As this conclusion counters that of reputable public polling, we urgently request that the EHRC publish more details surrounding the circumstances and methodology of consultation before using its results responded to by a self-selecting audience, to support a highly significant change to the EqA. We also remind the EHRC that rights of marginalised groups should not have to depend on majority support, despite the fact that, in the UK, that support does currently align with protecting these rights.
The existing guidance relating to single sex spaces has been in place for over ten years with very little incident. Furthermore, the current guidance already gives service providers the ability to exclude transgender people from single sex spaces which align with their lived gender if this is proportionate means to a legitimate end5. For example, this provision has already allowed some providers of specialist services, such as women’s domestic violence and rape crisis centres, to exclude transgender women if they feel this is necessary. Through supporting the suggested change against an existing modus operandi, service providers will effectively be forced to exclude vulnerable transgender people from using their services regardless of whether the service providers deem their services unsuitable for transgender people.
Furthermore, we are deeply concerned that the EHRC has not undertaken any consultation with transgender people in the production of this letter and the changes to the EqA proposed. In order to truly comprehend the implications of the changes the EHRC are supporting, it is essential that in-depth consultation is undertaken with the community most likely to be impacted by the proposed changes. As we have been provided with no evidence that such consultation has been undertaken, we believe that the EHRC have proposed a significant change to the EqA without truly understanding the severe consequences of this alteration. We find this to demonstrate an alarming neglect of the duties of the EHRC, namely protecting all people from discrimination.
1.3. International Precedent:
It is also pertinent to note that international jurisdictions that have tried to implement biological definitions of sex have inevitably harmed cisgender women who do not abide by “conventional” social standards of womanhood. Studies have shown that bathroom bills in the USA aimed at defining biological sex have inevitably had a racialised impact, where cisgender women of colour have had their womanhood questioned and their bodies policed6. Likewise, following the implementation of biological definitions of sex to consider transgender identity in India, grassroots organisations and community advocacy groups have shared anecdotal evidence of cisgender lesbians being asked to prove their gender identity if their behaviour did not conform to socio-political expectations of womanhood. Attempts at defining biological sex have also been promoted by opponents of same-sex marriage in India, as their judicial filings show how an inflexible understanding of gender identity and norms have a knock-on effect on their understanding of sexual orientation.
2. Defining and applying biological sex:
The central argument of the guidance is that changing the definition of ‘sex’ given in the EqA from legal to biological sex would bring greater legal clarity and protect service provision for cisgender women. However, we disagree that these changes will bring either of these desired outcomes. We are also concerned that the EHRC has not truly grappled with the practicalities nor the implications of such proposals.
We urge the EHRC to consider whether there is any way to define ‘biological sex’ which is practical and respectful.
If the EHRC choose to rely on a definition of ‘biological sex’ as ‘sex recorded at birth’, then we question whether the impracticalities of and inconsistencies arising from this have been considered. Specifically, how would a transgender man or transgender woman with a Gender Recognition Certificate (GRC) and gender affirming surgery (to the extent that they are outwardly, physically a man/woman) be identified as not being biologically male/female?
In most cases, if a person has a GRC it is illegal to ask for proof of sex assigned at birth (under the Data Protection Act 2018). This functionally makes determining biological sex by production of a birth certificate impossible. Is the implication therefore, that the Gender Recognition Act 2004 or the Data Protection Act 2018 would also require amendment? These pieces of legislation were drafted with reference to the European Court of Human Rights ruling in Goodwin v United Kingdom (2002) which found that by not implementing a system for changing legal sex the UK Government had breached the human rights of a transgender woman. Therefore, making such amendments to the Gender Recognition Act 2004 and the Data Protection Act 2018 would likely contravene the precedence established in that ruling.
Acknowledging the limitations of relying on ‘sex assigned at birth’ may lead to the promotion of the use of chromosome testing to determine someone’s ‘sex’. Opting for this method would be impractical, expensive and would almost certainly represent a breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life). It will also have the consequence of forcing transgender men into women’s spaces, whilst denying access to women who are intersex or have chromosomal variations, many of whom will not be aware of these differences in sex characteristics themselves.
Hormone level testing and genital inspections may also be promoted as a means through which ‘sex’ can be determined. However, like the other methodologies explored here, the results of these invasions of privacy would not lead to simplistic exclusions/inclusions from certain spaces. Hormone level testing (issues listed above notwithstanding) would be ineffective as transgender men and women will achieve levels consistent with their gender identity when on Hormone Replacement Therapy (HRT). Genital inspections, aside from obvious violations to human rights and dignity, would have similar issues. A transgender woman with a neovagina would be indistinguishable from her cisgender peers, and a transgender man with a vagina would legally have to be admitted to a women-only space.
Furthermore, changing the EqA to use a definition of ‘biological’ over ‘legal’ sex would, unnecessarily and adversely affect cisgender women. The EqA would still require any proof of biological sex to be asked of everyone interacting with a service (to ensure that indirect discrimination does not occur). We ask how will cisgender women feel if they are required to prove their ‘biological sex’ when interacting with services to which they are entitled to access as women? It is unclear what is envisaged in real terms, but it is certainly the case that any checks intended to determine ‘biological sex’ would heavily and intrusively impact cisgender women, both in law and in practice, particularly those who don’t fit societal norms of femininity.
In short, there are no practical or ethical benefits to pushing forward this amendment, and there are no ways of implementing such a change that would not have a seriously damaging impact on all women.
3. Contesting the ‘Clarity’ Brought to Eight Areas:
3.1. Pregnancy and maternity:
Disparities in the care that pregnant cisgender women and pregnant transgender and non-binary people receive is due to a multitude of intersecting social and cultural factors, not the legal classifications surrounding sex and gender. Our research7 into transgender and non-binary people’s experiences of maternity services clearly and consistently demonstrates that transphobia is often the largest barrier to these people receiving high-quality perinatal care. The recommendations of this report include supporting the delivery of personalised and trauma-informed perinatal care; proactively adopting inclusive language and targeting outreach to transgender and non-binary birthing parents; and implementing IT and demographic monitoring systems to enable the sensitive collection of data about gender identity and transgender status in perinatal services.
In sum, the current provision of perinatal care fails to adequately cater to transgender men not because they have a GRC but because services are not designed or facilitated in an inclusive manner. A biological definition of sex does nothing to give transgender men better access to care on a medical or personal level and may prevent access to appropriate paperwork such as being a father on birth certificates.
It would unfortunately seem that the EHRC have misunderstood the genuine needs of transgender men, applying an unfair assumption about legal classification to support a change which would worsen the outcomes for transgender men through validating transphobia and deepening the inequalities already present.
3.2. Freedom of association for lesbians and gay men:
Since our establishment in 1975, we have worked consistently with and for lesbian and gay men and women to provide support for their unique needs and spaces where they feel safe, seen and heard. Each year, we serve over 40,000 people as well as providing information to over 600,000 individuals online. Through this extensive community engagement, we can confidently state that the vast majority of cisgender lesbian and gay men and women actively support and encourage the inclusion of transgender gay men and lesbian women in spaces designed for them. This leads us to conclude that the EHRC has not completed comprehensive community engagement on the matter of transgender inclusion in lesbian and gay spaces.
We are also deeply concerned with the consistent separation and opposition of transgender and cisgender lesbians. The separation of this group, which share significant similarity and solidarity, into two distinct, opposing categories will create division and further marginalisation over advocating for the much-needed improvement of service provision for cisgender and transgender people alike.
Furthermore, this proposal also systematically erases the existence of transgender people by implying that sex recorded at birth always takes precedence over any other form of documentation, essentially implying that transgender people can never be fully recognised as their lived gender. Supporting the idea that transgender men would be better placed with cisgender women when accessing single-sex spaces or services would completely undermine and dismiss the identities, needs and experiences of transgender men.
In sum, a ruling that supposedly facilitates the freedom of association for lesbians and gay men, conversely directly limits that for those who are transgender without the support of rigorous and wide-reaching community research.
3.3. Freedom of association for women and men:
Once more, we question who precisely is calling for the implementation of biological sex as an integral characteristic for membership to single-sex spaces. As previously mentioned, the British public do not view transgender people as an ‘issue’ which national action should be prioritised, the reality is quite the opposite. In reality, the primary threat to the provision of public single sex services is systemic under-funding, worsened by recent Government cuts to public sector8.
3.4. Positive action:
It is clear that the EHRC have misunderstood the causes of sex-based discrimination. Sex- or gender-based discrimination occurs due to the perceived gender of an individual influencing the assumptions made about them and their capabilities, thus limiting or inhibiting their prospects9. As such, biological sex is far less of a determinant on whether someone is subject to sex-based discrimination than perceived gender. Therefore, changing the definition of sex the EqA will not bring about the desired reduction in discrimination.
3.5. Occupational requirements:
We urge the EHRC to consider the practical implications of this proposed amendment. Would someone who has specifically requested to be seen by a woman, feel listened to if greeted by a transgender man who has routinely used testosterone for years? The proposed changes rely on stereotypical assumptions about the appearance of transgender and non-binary people, and the unevidenced belief that transgender women pose a threat to cisgender women.
3.6. Single sex and separate sex services:
In regard to single sex and separate sex services, we feel urged to reiterate that the EHRC must not support the transphobic narrative that granting rights to transgender people, especially transgender women, undermines that of cisgender women. Transgender people have accessed single sex spaces which align with their lived gender for decades without causing conflict, and to the benefit of the cisgender people with whom they are sharing these spaces. Indeed, a requirement of the already complex requirements for receiving a GRC is having lived in the sex to which one is seeking to legally transition, including accessing single sex spaces, in one’s lived gender for a minimum of two years. The proposals made in the EHRC’s letter are by no means an effective way of safeguarding and improving the services provided in single sex spaces, but would rather act as an effective barrier for any transgender person seeking to gain legal gender recognition. Instead, these proposals opt for a far too simplistic blanket ban that severely restricts provision for transgender people whilst also worsening the provision for cisgender populations.
Furthermore, we ask where transgender people will go to seek much needed support if they are given no choice but to enter spaces designed for an opposing gender where they will likely be subject to hate and discrimination. This proposal treats transgender people as second-class citizens whose needs should be placed far below their cisgender counterparts.
We acknowledge that a very small minority of cisgender women may feel uncomfortable in the presence of a transgender woman. However, we find it difficult to believe that these cisgender women would feel more comfortable in the presence of a male-passing transgender man. As such, the suggestions the EHRC have made here not only infringe the rights of transgender people, but also that of their cisgender counterparts.
The impact of transition-related healthcare on the performance of transgender athletes remains an area of ongoing study. However, initial conclusions illustrate that the importance of biomedical factors is often overvalued when considering variables impacting performance. Research states that genuine attempts to reduce gender-based disparities in sport should address imbalances in social factors, such as nutrition, training, and access to equipment 10. As such, it is disappointing to see the EHRC follow numerous British sporting bodies in not following the weight of rigorous study through supporting a blanket ban on transgender athletes and continuing to neglect the far more dominant causes of gender-based disparities.
3.8. Data collection:
The 2021 UK Census data confirms that there are approximately 262,000 people whose gender identity is not the same as the sex they were assigned at birth. Although we believe this number to be a base estimate for the accurate number of transgender people in the UK, it does illustrate that transgender people are a minority population. We would question how frequently, if at all, such a minority population could cause a significant deviation to the results of any rigorous sampling. Here, it seems that the EHRC has fundamentally misunderstood the experiences of transgender people through effectively promoting an incorrect narrative that the data collected from transgender women would be more similar to that of cisgender men than that of cisgender women. Such a narrative is not only severely misguided, but also undermines the existence of transgender people.
To conclude, the EHRC’s letter to the Rt Hon Kemi Badenoch MP (Minister for Women and Equalities) has left us very disappointed. We cannot understand how an organisation which prides itself on challenging discrimination and protecting human rights, could support a change to the EqA which would severely undermine the rights of a vulnerable, marginalised population without the indisputable support of reputable research and comprehensive public surveying.
As outlined repeatedly above, we believe that the arguments the EHRC have listed in favour of changing the definition of ‘sex’ given in the EqA to biological sex are incorrect. Not only this, but the practicalities of implementing this new definition will be costly and impractical, infringing on the freedom and rights of transgender and cisgender people alike.
We urge the EHRC to produce a redraft of the guidance they have issued to the Rt Hon Kemi Badenoch MP (Minister for Women and Equalities). The EHRC must produce a redraft of this letter that is led by reputable research engagement with the public, specifically communities most likely to be impacted by any amendment to the EqA.
Dr Paul Martin OBE (HonDSocSci)
Chief Executive, LGBT Foundation