Tory Minister Kemi Badenoch wants to change the legal definition of ‘sex’, robbing the trans community of vital rights and protections – and Labour is apparently fine with this
Equalities Minister Kemi Badenoch is considering changing the legal definition of “sex”, a move which would strip trans people of many of the rights and protections they are currently afforded.
Yesterday, the Equalities and Human Rights Commission (EHRC) published a letter they wrote to Badenoch, at her request, endorsing this change and spelling out its implications. To be clear, this is still only a recommendation and does nothing to change the law – Grey Collier, a trans human rights lawyer and former legal director of the EHRC, has described it as “nonsense”, “unworkable” and “legally illiterate” – but it’s a sign of how bad things are that such a significant setback for trans rights is even under discussion. Equalities law is migraine-inducingly complex, for me anyway, but I’ll try my best to explain what this proposal means in the least convoluted way possible.
WHAT WOULD THIS CHANGE MEAN FOR TRANS PEOPLE IN THE UK?
Since the Equality Act was introduced in 2010, any trans person with a Gender Recognition Certificate (GRC) has the same legal “sex” as a cisgender person: trans women are legally women, trans men are legally men. However, there are provisions in the Equality Act which mean that trans people can already be legally excluded from certain single-sex spaces, such as domestic abuse refuges or group counselling sessions. But there is a burden of proof: you can’t just discriminate against trans people if you feel like it, you have to show that doing so is a “proportionate means of achieving a legitimate aim”.
Whatever you think about this provision, the fact it already exists shows the extremity of this new proposal, which is not about “reasonable concerns”, but instead about facilitating structural transphobia on a grand scale. With the backing of Downing Street, Badenoch is attempting to make “sex” refer exclusively to “biological sex”, i.e sex assigned at birth. This means that trans people would be excluded from single-sex spaces by default, with no justification required. The EHRC offers absolutely no evidence that this is necessary.
In healthcare settings, such as hospitals, the EHRC also recommends making it legal for organisations to limit their services to “biological women”. As Collier notes, this could affect trans women in their eighties who have been accessing correctly gendered services for decades. The proposal would also affect sports: currently, event organisers can legally exclude trans people, but only if they’re able to prove that it’s necessary in “the interests of fairness of safety”. The EHRC considers this requirement to be an unreasonable burden, and suggests removing it entirely. This would allow trans people to be discriminated against for no reason whatsoever.
HOW LIKELY IS THIS TO HAPPEN?
There’s no denying this is an alarming development, but trans campaigners have cautioned against panic. According to a statement published by Gendered Intelligence, “this letter has no statutory weight – that is, it doesn’t change the law… Rest assured that services and institutions are no more empowered to exclude trans people than they were yesterday, nor do we expect this to change any time soon.”
The support from the EHRC is worrying, though. And while it is theoretically an independent watchdog, it has come under fire in recent years for collaborating with the Tories, with critics citing “politically motivated” appointments, “excessive” government interference and the organisation’s “determinately anti-trans stance”. In 2022, a coalition of LGBTQ+ organisations called for it to lose its status as an internationally recognised body. This came after it recommended that the UK government exempt trans people from its ban on conversion therapy and wrote to the Scottish government asking it to pause its reform of Gender Recognition. This latest intervention is just one more example of the EHRC’s anti-trans bias, even if it’s a particularly stark one.
It’s extremely distressing to see the UK’s equality watchdog, the EHRC, seeking to strip trans people’s rights from the Equality Act 2010. By redefining sex, they support removing the rights and protections trans people have had for over a decade 🧵 https://t.co/63MZn7hGKO— Mermaids (@Mermaids_Gender) April 4, 2023
SO WHAT HAPPENS NEXT?
As you would expect, these proposals have been welcomed by anti-trans groups and denounced by LGBTQ+ organisations, among others. Mermaids tweeted that it was “extremely distressing” to see the EHRC seeking to strip trans people’s rights, and criticised the EHRC for failing to provide any supporting evidence for their stance. Stonewall said that it risks “opening yet another chapter in a manufactured culture war that will see little benefit to women, cis and trans alike”. A number of feminist commentators have suggested that this proposal could be used to exclude and oppress cisgender women too, particularly those who are gender-nonconforming.
It is disappointing, but not altogether surprising, that Labour has failed to challenge it. Less than a week after the party pledged its commitment to “building a society where the trans community feel safe and respected”, a spokesperson announced that it welcomed the review: “Clarification is a good thing. We will look closely at what’s brought forward.” Whether it’s stripping away the rights of asylum seekers or legislative assaults on the trans community, it seems there is no conservative policy that Labour won’t endorse.