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Updating the Equality Act definition of ‘sex’ | EHRC opinion and considerations for the workplace
Written by Alexandra Farmer on 30 May 2023
The Equality Act 2010 provides protection from discrimination on the grounds of a number of protected characteristics, one of which is “sex”.
There is no definition of “sex” in the Act, although it is treated as binary – either a “man” or a “woman”. One issue that has become more prominent in recent years, though, is how this protects trans people and whether this results in a conflict with women’s rights.
Under the Gender Recognition Act 2004, it is possible for a trans person to apply for legal recognition of their acquired gender via a Gender Recognition Certificate (GRC). There are currently strict eligibility requirements for a GRC.
In a 2022 Scottish case, For Women Scotland Ltd v Scottish Ministers, the Court decided that a trans woman with a GRC would be regarded as a woman for the purposes of protection under the Equality Act. This raised concerns from women’s rights organisations that it weakens the protection for women – an example given is in respect of single-sex spaces, whereby a trans woman would be able to access services that are available to women only.
In 2022, the Scottish Government sought to amend the Gender Recognition Act in Scotland to make it easier to obtain a GRC, furthering concerns amongst women’s rights organisations. This legislation has since been blocked by the UK government, and with a change of leadership in the Scottish National Party, it’s not clear at the time of writing whether this change will be pursued.
EHRC opinion: clarity or complications?
In February 2023, the Minister for Women and Equalities wrote to the Equality and Human Rights Commission (EHRC) for an opinion on whether the Equality Act should be amended to include a definition of sex that referred only to “biological sex”.
The EHRC responded in April 2023. It stated that, on balance, updating the definition of “sex” to refer only to “biological sex” would help to clarify some areas of protection, including some that will be relevant to the workplace:
- Pregnancy and maternity: As things stand, protections in the Equality Act for pregnant women and new mothers fail to cover trans men who are pregnant and whose legal sex is male. Updating the definition of sex to mean “biological sex” would resolve this issue, giving these individuals the same rights as a pregnant woman at work.
- Positive action: The revised definition would restrict access to “women only” shortlists (and other measures aimed at increasing female participation) to biological women and exclude trans women from these efforts.
- Occupational requirements: Where there is a requirement to have a woman working in a role (because, for example, it’s single-sex space), updating the definition of sex would mean a trans woman could not take up that role.
- Single-sex and separate-sex services: Under the revised definition, it would be easier to make, for example, a women’s only ward a space for biological women only.
- Equal opportunities: The EHRC says that the revised definition would make it easier and more informative to collect data in respect of equal opportunities.
- Freedom of association for lesbians and gay men: The EHRC explains that, if sex means legal sex, then sexual orientation changes on acquiring a GRC. Some trans women with a GRC become legally lesbian, and some trans men with a GRC become gay men. As things stand, a lesbian support group (for instance) may have to admit a trans woman with a GRC who are attracted to women without a GRC or to trans women who have obtained a GRC. Adopting a biological definition could restrict membership to biological women. Admittedly, this may have limited relevance to the workplace, unless the employer is running such an organisation/space.
- Freedom of association for women and men: Similarly, the revised definition would enable organisations to restrict membership to biological women/men. Again, this may not have much relevance to work, unless the employer is running such an organisation/space.
More details on each of these points can be found in the EHRC’s letter to the Secretary of State for Business.
Beyond the realm of employment, the revised definition would make it easier for organisers to exclude trans women from women’s sport, a topic that continues to spark debate, calling into question issues of fairness and safety.
However, the EHRC did acknowledge that adopting a biological definition of sex could also create issues, particularly in respect to:
- Equal pay: The revised definition could cause some issues as to who a trans man or woman would compare themselves to in order to establish if they are receiving equal pay or not.
- Direct sex discrimination: The revised definition would mean that a trans woman, for example, could not bring a claim for sex discrimination on the basis that she has been treated less favourably than a comparable man on the grounds of her sex.
- Indirect sex discrimination: Similar to the above, the revised definition would mean that a trans woman could not argue a claim of indirect discrimination on the basis that she is a woman.
A delicate issue
The EHRC acknowledges that this is a complicated and delicate issue, stating that the potential implications should be carefully identified and considered before implementing this change.
It also states that there may be other ways of addressing the concerns that have been raised but says the focus of its response was based on the limited scope of the question posed.
This is and continues to be a very sensitive area, and only time will tell whether or not these changes are implemented. A lot may depend on the progress of the amendment legislation proposed by the Scottish Government and when a general election takes place.
Under the Equality Act, protection is afforded to individuals who have undergone, are undergoing or proposing to undergo gender reassignment, and this proposal would not affect that. However, given the potential impact on equal pay, direct and indirect discrimination, and other possible consequences perhaps not identified in the EHRC opinion, hopefully careful thought will be given to the proposal and its implications before a decision is taken, and consideration given to alternative methods to ensure that the right balance is struck.
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