Sunak Says UK Government Will Consider Defining Sex as Biological Sex in Equality Law

Prime Minister Rishi Sunak departs 10 Downing Street to attend Prime Minister's Questions at the Houses of Parliament, in London, on March 22, 2023. (Victoria Jones/PA Media)

Prime Minister Rishi Sunak said on April 5 that ministers will consider the equality watchdog’s advice to clarify that “sex” means biological sex in the Equality Act 2010 (EqA).

Visiting a factory in Peterborough, Sunak told reporters biological sex is important when it comes to women’s rights.

A spokesperson for Labour leader Sir Keir Starmer also appeared to have sent a welcoming signal, saying the party will consider what the government proposes.

The Equality and Human Rights Commission (EHRC) published a letter on April 4 from Women and Equalities Minister Kemi Badenoch sent in February seeking advice on clarifying the definition of “sex” in the EqA.

Published with it was the reply from EHRC Chair Baroness Kishwer Falkner, who said the committee believes that defining “sex” as biological sex would provide clarification and reduce risks for employers, sports organisers, and other service users and providers.

Asked about the advice on April 5, Sunak said, “The first thing to say is that we should have enormous compassion and understanding for anybody who is thinking about their gender and identity.

“But alongside that, it’s important that we also protect and support and ensure women’s rights. And I fundamentally believe that biological sex is important in that regard.

“That’s why [Badenoch] asked the independent advisory board for advice on this matter, they’ve responded and we will consider that advice in the normal way as we always do in these matters.”

During a visit to a Caterpillar factory, Prime Minister Rishi Sunak meets apprentices and staff who produce engines for construction, agricultural, and electrical machinery in Peterborough, Cambridgeshire, England, on April 5, 2023. (Stefan Rousseau/PA Media)

In a statement to The Times of London, Starmer’s spokesperson said: “Clarification is a good thing. We will look closely at what’s brought forward.”

However, Labour MP Nadia Whittome labeled the EHRC’s advice “an attack on the limited rights and protections that trans people currently have.”

In a Twitter post, Whittome wrote that the proposal is “another chapter in the vile culture war against trans people—a small minority already facing a huge amount of discrimination.

“We must stand with them and resist this.”

Starmer has grappled with bridging the divide within his party between pro-trans and feminist MPs. In 2021, he told the BBC’s “Andrew Marr Show” that it was “not right” that Labour MP Rosie Duffield had said only women have a cervix, and that “the trans community are amongst the most marginalised and abused communities.”

Labour leader Keir Starmer during a visit to Burnley College in East Lancashire, England, on April 4, 2023. (Danny Lawson/PA Media)

The Labour leader told The Times of London on April 1, “For 99.9 percent of women, it is completely biological ...  and of course they haven’t got a penis.”

Starmer sought to calm fears that women’s rights would be rolled back if Labour gets in government, saying, “I don’t think we should roll anything back.”

Duffield later shared a commentary from the same publication titled “Starmer is taking 99.9% of women for fools,” which said the rolling back of women’s rights is “already a reality.”

EHRC: New Definition Would Create Clarity

There are nine “protected characteristics” under the EqA, including age, disability, race, religion or belief, marriage and civil partnership, sex, sexual orientation, gender reassignment, and pregnancy and maternity.

But under The Gender Recognition Act 2004, those who obtain a Gender Recognition Certificate would have their acquired gender recognised as their legal sex, raising problems in many areas.

Falkner said the EHRC believes that defining “sex” as biological sex for the purposes of EqA would “bring greater legal clarity” in eight areas, such as data collection, single-sex spaces and sports, and helping “trans men” access female-specific supports and protections.

For instance, pregnant women identifying as trans men would not be covered by protections in the EqA for pregnant women and new mothers because their legal sex is male. “Defining ‘sex’ as biological sex would resolve this issue,” Falkner’s letter reads.

Defining “sex” as biological sex would also help keep biological males out of areas such as women-only hospital wards, women’s sports, other women-only competition shortlists, women-only clubs, and lesbian support groups, the letter said.

What’s more, an employer who wants to hire a female warden for a women’s or girls’ hostel would be able to exclude biological males.

Unisex toilets. (Martin Keene/PA)

Falkner also cited three areas where she said the change would be “more ambiguous or potentially disadvantageous” and transfer rights “from some trans women to some trans men.”

A trans woman can now bring an equal pay claim if “a legally male comparator” is paid more, but a trans man can’t. If “sex” is defined as biological sex, trans women, who are biological males, would lose the right, and trans men, who are biological females, would gain it. The same goes for claims of direct and indirect sex discrimination against women.

The letter said the government should calibrate any changes to avoid conflict between changing the definition and Article 8 of the European Convention on Human Rights.

“The more targeted any change is, the less likely it is to be a violation of Article 8 rights,” it reads.

It also warned that the change would affect more people if Scotland’s new Gender Recognition Reform Bill, which all but removed barriers to changing legal sex, becomes law.

Falkner told Badenoch: “[The EHRC believes that] redefining ‘sex’ in EqA to mean biological sex would create rationalisations, simplifications, clarity, and/or reductions in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers. It therefore merits further consideration.”