Sex in the Equality Act: issues and choices for political parties

This posts considers why the definition of ‘sex’ in the Equality Act is properly an election issue, the options for political parties, and what we know about what the main parties are proposing.

How sex is described in the Equality Act

The Equality Act 2010 (EA2010) is the main statute in the UK protecting individuals from unfair treatment by employers, public authorities, private businesses and other organisations and service providers, due to having one of nine “protected characteristics” defined in the Act. One of these is ‘sex’, which the Act says means being a woman or a man. A woman is defined under the Act as “a female of any age” and a man as “a male of any age”. When the Act was passed in 2010, it was not felt necessary to define female and male.

The Equality Act is mainly concerned with ensuring that women and men are not treated differently. But for some purposes the Act recognises that it is reasonable to treat women and men differently: single-sex spaces and services, some occupations and sports are probably the best known examples of this. Indeed, sometimes it may be necessary to treat men and women differently: for example, failing to provide female staff with changing facilities separate from male staff can constitute a form of ‘indirect discrimination’ against women under the Act.

What does sex in the Equality Act mean?

In February 2022, the Inner House of the Court of Session, the highest court in Scotland, ruled on a case brought by For Women Scotland against the Scottish Government (SG). The government had adopted a definition of “woman” in the Gender Representation on Public Boards Act 2018 which included “living as a woman” for those men covered by the protected characteristic of gender reassignment. The court agreed with FWS that the Equality Act set the parameters for definitions in the 2018 Act, due to the way the Scottish Parliament’s powers are framed, and that for the purposes of the Equality Act, “provisions in favour of women, by definition, exclude those who are biologically male.”

The government accepted the loss without any further appeal. The legal position was therefore established in case law that “women” under the EA2010 did not include male people covered by gender reassignment who defined themselves as women. At this point, it appeared a clear biological definition had been established.

However, the SG went on to assert that the court ruling still left room for it treat a person with a Gender Recognition Certificate (GRC) marked ‘female’ as a woman under the EA2010. FWS went back to court to challenge this. This time, both the Outer and Inner Houses of the Court of Session agreed with the SG and rejected the challenge, agreeing that a GRC can change a person’s sex for the purposes of the EA. FWS was however granted leave to appeal to the UK Supreme Court, which will make the final decision sometime over the months ahead.

So right now the law as established in these court cases is that specifically for the purposes of the applying rules in the Equality Act:

• it is clear that someone without a GRC is treated as the same sex they have always been, but
• if someone has a GRC, they can (always/mostly/sometimes – this was left unclear) be treated under the EA2010 as if they had been born the opposite sex. This decision is not however settled: the Supreme Court could overturn it, by deciding that the Equality Act should be treated as an area of law where a GRC does not have an effect. The Gender Recognition Act 2004 provides for some such areas of law to exist.

Why this matters

If a GRC changes whether someone counts as male or female under the Equality Act, further rules do still allow a male person who holds a GRC marked as “female” to be excluded from spaces, roles and sports designated as women-only, as long as the legal conditions for this are met. But it is not as immediately, obviously straightforward to do this as it is to exclude any male person without a GRC, making organisations more wary of using their powers here. Also, in some circumstances, if a GRC changes how a person is classified under the EA2010, it grants unqualified rights to activities reserved the opposite sex. Single sex associations and schools were the examples used, when the UK government defended its decision to use powers under the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill becoming law. The UK government argued that making GRCs more widely available risked a detrimental impact on the operation of the EA2010. When the SG challenged this in the Outer House, the court agreed the UK government had acted reasonably, and the Scottish Government did not appeal.

Where now?

The first case brought by FWS established that biology is not trumped by anything short of a GRC. But until the Supreme Court overturns the decision in the second case brought by FWS, that a GRC has an effect on a person’s sex under the EA2010, the definition of sex under that Act is enmeshed with the Gender Recognition Act. The Inner House did not explore how far this entanglement goes or if any there are limits. As a pure point of law, no-one can say right now that the meaning of ‘sex’ in the EA2010 is clear, or clearly based on biology.

Options to obtain clarity and party positions

If the court clearly and completely decides in favour of FWS, then it will draw a line under attempts to read sex in the EA2010 as meaning anything other than a lifelong immutable physical characteristic, unrelated to one’s interior sense of self, any surgical or hormonal changes a person makes to their body, any changes in how they engage with the world around them or any paperwork issued to them by the state.

Any other result however will leave the meaning of the sex in the EA entangled with GRCs, to a greater or lesser degree, depending on how far the court accepts the argument that terms such as woman, man and sex can only have one meaning throughout the Act.

In that case, only legislation will clarify the situation. Guidance can suggest the logical way to apply the law in more detail, but where the law is muddy, guidance cannot magic the muddiness away. Having previously supported the EHRC’s call last year to clarify the law, last week a Labour frontbench spokesman said that it thought guidance would be enough to deal with uncertainty here. (This line has also been deployed in the recent past by Scottish Labour politicians.) But it cannot be.

Legislation could take two forms:

• It could expand on the definition of male and female in the Equality Act in some way. This is the approach the Conservatives are now proposing. The intention would be to put beyond doubt that the only relevant concept of sex in contexts covered by the EA2010 is as a lifelong, permanent physical characteristic. A risk here is that, just as male and female have become contested and attempts made to assert them as identity-defined terms, so might any other new words added. It could turn out to be a temporary fix. Another argument made against this approach is that a phrase like “biological sex” inadvertently suggests sex can also be defined non-biologically.
• The alternative way disentangle the EA2010 and the GRA is to legislate to make it clear that the Equality Act is one of the cases where a GRC has no effect: s9(3) of the GRA provides explicitly for limitations on the legal effect of a GRCs. This could probably be done as an amendment to either Act. It avoids the problems of expanding on the definition of sex, although it doesn’t do anything to protect the definition of sex in the EA2010 from further attempts to relate it to a subjective sense of self, rather than immutable material reality.

On Monday, the Liberal Democrats revealed the relevant part of their manifesto. They have no plans to legislate to deal with the interaction between the EA and the GRA, which will be left in whatever shape the court decides. They do however want to make GRCs easier to obtain. It remains to be seen what Labour will commit to. Their manifesto will be published tomorrow (Thursday 13 June).