UK Equality Watchdog Backs Plan to Define ‘Sex’ as Biological Sex

Unisex non-binary gender neutral toilets (Martin Keene/PA)

The UK’s equality watchdog has backed the government’s proposal to amend the Equality Act 2010 (EqA) to clarify what “sex” means.

In a letter published on Tuesday, Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission (EHRC), said the commission believes defining “sex” as biological sex would provide clarification and reduce risks for employers, sports organisers, and other service users and providers.

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 GRC 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,” the 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, or lesbian support groups, the letter said.

An employer who wants to hire a female warden for a women’s or girls’ hostel would also be able to exclude biological males.

Demonstrators hold placards as they take part in the "Let Women Speak" rally in Glasgow, on Feb. 5, 2023. (Andy Buchanan/AFP via Getty Images)

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.

“On balance, we believe 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,” Falkner wrote.

The letter is the initial response to Women and Equalities Minister Kemi Badenoch’s request for the EHRC to exercise its legal power to advise government about the effectiveness of and potential changes to the EqA.

Falkner said the commission is “happy to discuss further” with the government on other potential implications of this change and potential consequential amendments. She also suggested the government “undertake a broader consideration, including through consultation,” of evolving public opinions on the matter.

The EHRC’s support for amending the EqA comes after more than 100,000 people signed a petition to Parliament urging the government to specify that the terms sex, male, female, man, woman, in the EqA “mean biological sex and not ’sex as modified by a Gender Recognition Certificate [GRC].'”

It also comes after a number of court cases in England and Scotland raised questions about the definition of sex in the 2010 law.

In 2021, campaign group Fair Play For Women won a legal challenge against the Office for National Statistics (ONS), forcing the ONS to make census respondents provide their legal sex instead of letting them define their own sex.

In December 2022, campaign group For Women Scotland lost a case against the Scottish government, which issued guidance (pdf) saying “woman” in Gender Representation on Public Boards (Scotland) Act 2018 includes trans women who have a GRC.

In her decision (pdf), the judge, Lady Haldane, concluded that the meaning of “sex” for the purposes of the 2010 Act “is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex.”

Undated photo of Maya Forstate, cofounder of campaign group Sex Matters. (Nicole Jones/handout via PA)

Sex Matters, which created the petition to push for the clarification, welcomed Falkner’s letter.

“We particularly welcome the recognition by the official human-rights watchdog that there can be competing rights between the ’the rights of trans women and of biological women' and that human-rights law may require the statutory recognition of biological sex, for example in the enjoyment of separate-sex and single-sex spaces or sporting activities,” the campaign group said in a statement.

Naomi Cunningham, chair of Sex Matters, said, “This is a measured and thoughtful analysis from the EHRC. We are confident that our proposed amendment will deliver substantial improvements in clarity and fairness, but for now we are content with the conclusion that it merits further consideration.”