The UK Government is proposing a change to the Equality Act 2010, for England, Scotland and Wales, which would redefine the term ‘sex’ as referring to a person’s ‘biological sex’, or in other words, their sex at birth.
This move would make it legal for transgender people to be banned from single-sex spaces and events, such as sports groups, book groups and hospital wards.
Discussions of this move first arose when UK Prime Minister Rishi Sunak first ran for the Tory leadership. In his campaign, he said he would ensure that “women’s sports and services are protected and clarify that self-ID does not have legal force” by amending the Equality Act 2010 to make it clear “that sex means biological sex”.
Impact
If this proposed change was to be implemented through Parliament, it would mean that trans people would be treated on the basis of their assigned gender at birth – a trans man would be treated as a woman, and a trans woman would be treated as a man, for the purposes of the Equality Act.
Reception
Many in support of sex-based rights feel that this change will recognise protections for persons born biologically female. However, it is also recognised that the change could be detrimental for trans people.
Currently, trans people can have their identity recognised by obtaining a Gender Recognition Certificate (GRC), which affirms their gender change in the eyes of the law, allowing them to update their birth or adoption certificate, and have their gender recognised on a marriage or death certificate.
Those opposed to changing the Equality Act have suggested that the change could leave trans people feeling targeted, and increase the potential for hostility towards them.
Complexities
The Equality and Human Rights Commission (EHRC), which was approached for advice on the proposed change, stated that it believes that changing the word ‘sex’ to be defined as ‘biological sex’ will bring greater legal clarity in specific areas:
- Pregnancy and maternity;
- Freedom of association (for men and women, and for lesbians and gay men);
- Positive action;
- Occupational requirements where sex matters;
- Single sex services;
- Sport; and
- Data collection.
However, it also recognised that the change could invite ambiguity in three areas – equal pay, direct sex discrimination, and indirect sex discrimination.
For example, a trans woman with a GRC can bring an equal pay gap claim if they feel that a male colleague has been paid more for the same or very similar role. However, a trans man with a GRC cannot. Additionally, a trans woman with the GRC can bring a claim of sex discrimination as a woman, but a trans man with a GRC cannot. Changing the definition of ‘sex’ to ‘biological sex’ in the Equality Act will reverse both such situations.
The EHRC, in its response to the Government, highlighted the fact that if trans women were banned from spaces or events for those born biologically female, for example, that it is unlikely that trans people would be required to provide their GRC as proof of their legal status. In short, if the amendment was made to the Act, it would seemingly render the GRC useless.
In a further complexity, the Equality Act 2010, as it currently stands, makes it illegal for an Employer to exclude a trans person from a single-sex role without objective justification. If the change were to be made, this would mean that Employers could make such exclusions without the need for justification, and this would amount to unlawful discrimination, not on the basis of ‘sex’ or ‘biological sex’, but on the basis of the person’s trans status/gender reassignment.
One more complexity for good measure… if the proposed change to the law was made, there would be serious questions around the application and policing of the law. It is hard to imagine how carrying out checks to determine an Employee’s biological sex wouldn’t be invasive in nature and negatively impactful to any group.
What Should Employers Know
While this is a proposed change by the Government and currently in discussion with the EHRC, no change to the law has been made. Employers are still subject to the obligations of the Equality Act 2010, and are to protect their Employees from discrimination. Sex and Gender Reassignment are two protected characteristics under the Equality Act 2010.
If the change is to be made, it is inevitable that it will come with some legal wrangling and a few court battles, so it could be many months or even years before the changes are actually seen.
In the meantime, there are various steps Employers can take to support Employees of all genders in the workplace, such as;
- Maintaining Employee records that offer diverse gender options, not just male and female;
- Discussing the use of pronouns in email signatures and name badges for those Employees who wish to use them;
- Updating Contracts of Employment for all Employees, using the terms ‘they or them’ instead of ‘he, him, she, her’; and
- Creating considerate internal policies when it comes to dress codes and language in documentation (i.e: ‘Mothers’ and ‘Fathers’ referred to as Employees on maternity leave/ paternity leave).
As with many areas of Employment Law, this can be a very tricky topic to navigate. Please do not hesitate to contact us should you need advice or support in this regard.