Kemi Badenoch is considering a change to the Equality Act 2010 that would restore the meaning of sex to what everybody once understood. I am a science teacher, so I know this. There are two sexes: male and female. Females produces large gametes called eggs while males produce small motile gametes called sperm. Science doesn’t care whether it happens in frogs, monkeys or people – sexual reproduction is a robust process that has been around for millions of years.
Maybe – even as recently as 2010 – this was so obvious that it did not need to be stated when legislation was drafted. The Equality Act defines the protected characteristic of sex, quite simply as, ‘a reference to a person who has a particular protected characteristic is a reference to a man or to a woman’. But when Keir Starmer of all people now seems to think that one in a thousand women have a penis – and presumably the capability of producing sperm – clarity is desperately needed.
Tightening up the law could make it more difficult for abusive males to play the trans card, and hence abuse trans rights
In February, Badenoch asked the Equality and Human Rights Commission (EHRC) to advise her on ‘the benefits or otherwise of an amendment to the 2010 Act on the current definition of “sex”’. The EHRC has just responded with a refreshing missive of common sense. In brief, the commission is of the view that ‘if “sex” is defined as biological sex for the purposes of [the Equality Act], this would bring greater legal clarity in eight areas’.
These examples included the right of both sexes to form single-sex groups and associations. At present it is hard to see how any group can defend its boundaries when – in the minds of too many people, it seems – a woman is anyone who identifies as a woman, penis or no penis.
The EHRC has not gone that far; in April 2022, the commission suggested that ‘Under the Equality Act people are protected from sex discrimination on the basis of their legal sex’. Legal sex can be changed when a Gender Recognition Certificate (GRC) is issued according the processes set out in the Gender Recognition Act 2004 (GRA). The UK might have so far avoided the calamity of self-ID where GRCs can be issued to anyone who wants one, and for whatever reason, but even so, neither hormone therapy nor gender reassignment surgery is a pre-requisite. In terms of legal sex, Starmer is almost right. Some (legal) women may well have penises, just far fewer than one in a thousand.
But either way, the law is a mess. The confusion has created uncertainty, which has damaged confidence, and that in turn has seeded fear and anger among two groups of people who worry that their rights are at the mercy of someone else’s feelings.
Many women, quite rightly, worry that if they are required to open their spaces to the other (biological) sex, single-sex exceptions are rendered meaningless. Meanwhile some trans people fear that they may be excluded from spaces they thought they had inherited. One social media influencer described the situation as ‘bleak’, calling it a ‘backdoor bathroom bill’ that would ‘basically nullify the GRA’.
Such heated rhetoric suggests a lack of confidence in the law. The boot is on the other foot when it is perceived that someone else’s feelings are in the ascendency. For everyone’s sake we need re-ground the law in reality, and that means defining sex in terms of biology. Everything else is open to interpretation.
What perhaps was not clear from some newspaper headlines was the commitment of the EHRC to trans rights. Indeed a focus on biological sex would restore the right of trans men with a GRC to seek pregnancy and maternity protections. The commission was also mindful of the potential impact on the right of trans women with a GRC to bring claims of sex discrimination as a woman.
All the time, this is a discussion over the protected characteristic of sex. Nobody in government or the EHRC is proposing to remove the protected characteristic of gender reassignment. That is where trans rights are protected, now and in the future.
Even so, the GRA is not nullified. That particular law was created to allow trans people to change their birth certificates so that they could marry in their acquired gender; that would continue to be the case. We also don’t have American-style bathroom bills in the UK. On this side of the Atlantic, no laws are broken, for example, when a woman uses a cubicle in the men’s to avoid a long queue for the women’s.
That said, it is an offence under the Public Order Act 1986 to cause another person harassment, alarm or distress. Tightening up the law could well make it more difficult for abusive males to play the trans card – and hence abuse trans rights – in order to abuse women’s spaces. That is something both women and trans people should welcome.
Badenoch should be praised for her initiative – biological sex is real, and reality matters – but as in many cases, it’s easier to draft laws than is it to apply them. The law can say that a space is restricted to biological females only but, under the GRA, a male person can change all their identity documents to indicate that they are female. Service providers may gain the right to exclude all trans women from a single-sex space, but it’s pointless if they cannot distinguish trans women from their paperwork. And if they pass reasonably well, service providers may not even think to ask.
Cool minds and clear heads are needed to solve that conundrum. Let’s hope they prevail.
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