On Monday 12 June, MPs met in Westminster Hall for a three hour debate on the definition of sex in the Equality Act 2010. A contentious debate that had been bubbling up for several months. Moss writes;
In October 2022 Maya Forstater started a Parliamentary petition to ‘update the Equality Act to make clear the characteristic “sex” is biological sex.’ In response, an alternative petition was created by an anonymous trans person to ‘commit to not amending the Equality Act’s definition of sex’. The first petition, for biological sex, was signed by 109,000 people, while the second petition, for legal sex, was signed by 138,000 people – almost 30,000 more.
The Government responded to both petitions on 25 and 26 January 2023, stating that no changes to the Equality Act were necessary. However, reflective of the incoherence and factions in our current Government, Minister for Women and Equalities Kemi Badenoch wrote to the EHRC (Equality and Human Rights Commission) asking their advice on the impact of changing the definition to mean biological sex.
Cut to 3 April, when, in the middle of a relatively calm afternoon at work, I was alerted to the now-infamous letter from the EHRC responding to Badenoch. They had laid out all the ways in which trans people would experience further discrimination without recourse were this change to be made, with nothing to suggest that they saw this as a negative impact.
And, as we later learnt from Victor Madrigal-Borloz, the United Nations Independent Expert on Sexual Orientation and Gender Identity (IE SOGI), and his meeting with the EHRC board, they not only wrote the letter without any consideration of what ‘biological sex’ means, but when pushed, defined it as ‘a woman who is not trans.’
The definition of sex in the Equality Act is important, as it creates the conditions for the law to understand whether or not someone has been discriminated against for characteristics that are marginalised by societal structures. According to the EHRC – who were created to regulate and help make the Equality Act understandable to the public – the definition of sex in the Equality Act is someone’s legal sex, which is ‘their biological sex as recorded on their birth certificate.
A trans person can change their legal sex by obtaining a Gender Recognition Certificate’. Changing the definition to biological sex would not only remove trans people’s protections under their sex, but it would also undercut the Gender Recognition Act: if biological sex trumps legal sex in law, then legal sex becomes a useless category. And that may well be the intention behind this debate.
Fourteen MPs spoke in favour of changing the definition of sex to biological sex. These included a number of well-known faces such as Joanna Cherry, Rosie Duffield, and Tim Loughton, as well as some newer faces to the anti-trans frontline, such as Angela Richarson and Anna Firth. In total, 10 of the MPs were from the Conservative Party, two were from Labour, and one each from SNP and Alba. Based on public information, only two of the speakers are openly LGBTQIA+: Neale Hanvey and Joanna Cherry.
One of the key arguments these speakers made was that trans people are already protected under the Equality Act through the protected characteristic of gender reassignment. This is certainly true. However, the framing was concerning: the suggestion will likely become that trans people have more rights and protections than women as a result of this. This would be a strange route to take, as these are protections against different types of discrimination.
Another key point often made from these speakers is that they are seeking a clarification rather than a change in the law. However, this is legally untrue. The Equality Act uses legal, or administrative sex. We know this because when a trans person gets a Gender Recognition Certificate (GRC) their sex is changed for all purposes in law, including the Equality Act. A GRC doesn’t change someone’s biology, it changes their legal status.
In fact, the EHRC states that “for the purposes of the Act, a person’s legal sex…’ This alone is a statement that legal sex is what is considered for the purposes of the Act. Of course, we should be well used to this level of gaslighting from anti-trans campaigners: as Kirsten Oswald noted;
“Members have repeatedly said that they are in favour not of changing the law, but of simply clarifying it, but it is a change that they are looking for. They are entitled to look for that change; I do not have to agree with it, but they are absolutely entitled to look for it. I do not know why that is the narrative. If they want to change the law, they should absolutely say that.”
One of the other key arguments used was an imagining of trans existence as a desperately tragic existence. Nick Fletcher leaned heavily into this, stating that;
“I am standing up for the 12-year-old allowed to use pronouns at school who is being sold a story that she can be something that she never can. I am thinking of her after her transition, when she wakes up one morning when she is 25 and realises that she can no longer have children. She is growing facial hair, her health is generally poor, her bone density is down, her voice has broken, she has no real friends, and she has probably fallen out with mum, who is now broken for letting her take those puberty blockers and hormone replacement tablets. I am thinking of that girl sold a lie by the influencers who have now moved on to another ideology to make them money.”
Similarly, Neale Hanvey said that “Telling children there is something intrinsically wrong with them is absolutely unforgivable”, implying that there is something intrinsically wrong with being trans, or even that trans people treat that as the case. These narratives function to create fear and distrust in trans people’s statements of reality.
These speakers of course relied on the usual narratives too, painting trans people as a threat to women and children. The unbecoming comments of these MPs deserve their own article, which you can read on Trans Writes – soon!
Seven MPs spoke in favour of retaining the definition of legal sex, including long-time trans allies Angela Eagle, Kirsty Blackman, and Kirsten Oswald. Of these, four were Labour, two were SNP, and one was Conservative. Alongside these speakers, four other known allies intervened on other speakers to add positive points to the debate. These were Hannah Bardell (SNP), Stephen Doughty (Labour), Olivia Blake (Labour), and Layla Moran (Lib Dem). Of these speakers, all but one is openly LGBTQIA+.
Those on the pro-trans side spoke with reason, pointing out that the exclusions sought by those on the ‘biological sex’ side (such as exclusion of trans people from single-sex spaces) are already legal under the exemptions in the Equality Act. They pointed out that the rhetoric surrounding the “trans debate” has already led to increased policing of women’s spaces, with that impacting trans and cis women alike.
Indeed, Peter Gibson noted “Changing the definition of sex in the Equality Act runs the risk of creating an environment of unintended consequences for people who do not conform to gender stereotypes, but nevertheless are cisgender.” The use of ‘unintended consequences’ felt like a subtle dig, reusing the language of fearmongering in anti-trans circles.
It was also highlighted that there is no definition of biological sex proposed, and Olivia Blake, who holds a degree in biomedical science, underlined the complicated nature of the matter, stating that “There is a risk in this House of us talking about GCSE biology rather than actual biology.” Kirsten Oswald echoed this, and added that “it could actually entrench gender stereotypes and biological determinism for women.”
The concluding remarks from Maria Caulfield, Minister for Women, suggested that there was mixed appetite from the Government about opening up the Equality Act for redefinition, but stated that the Government was considering its next steps. Only time will tell where we go from here, but one thing is for sure: we’re not alone in being attacked, but we won’t be alone in the fight back.
This article was funded by LGBT+ Futures: Equity Fund is a two-year £786,000 partnership between Consortium and The National Lottery Community Fund, designed to help community-led and grassroot organisations supporting some of the most under-represented and marginalised LGBT+ communities. Read more here.