On Tuesday 4th April, the UK Equality and Human Rights Commission published a letter to the UK Government recommending an amendment to the Equality Act 2010 which would change the definition of sex within the Act from legal sex to ‘biological sex’. The letter currently has no legal effect - it does not change the law. However, it is likely that the Government will seek to amend legislation to bring it into effect. Such a change would amount to a significant rollback of rights for trans people in the UK, and likely result in a breach of both domestic and international human rights obligations.

Who are the EHRC?

The Equality and Human Rights Commission (EHRC) are quasi-independent non-governmental organisation (QUANGO). Their purpose is to hold the government to account, ensuring that the UK complies with international human rights standards. However, this purpose is seriously undermined by the fact that its commissioners - who decide the direction of the organisation - are political appointments.

Over the last few years, the Government has ensured appointments to the EHRC reflect its current political agenda. This was highlighted in a letter raising concerns aboout the independence of the EHRC to the Global Alliance of National Human Rights Institutions in June 2022, on behalf of Stonewall, DPAC, and the Good Law Project. The letter was also supported by numerous other equality and human rights organsations in the UK.

The letter refers to a speech by Liz Truss, then Minister for Women and Equalities, in December 2020, where she makes clear that she was making appointments in order to ensure that the EHRC’s work reflected the Government’s political agenda:

That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission to drive this agenda forward… all of whom are committed to equality and ready to challenge dangerous groupthink. Under this new leadership the EHRC will focus on enforcing fair treatment for all rather than freelance campaigning.

The letter notes the serious backlash to such appointments by the majority of UK equalities and human rights organisations:

…many of the appointments made to further this new agenda have been met with dismay across civil society. On crucial issues, the new commissioners often adhere to regressive views which align with the Government’s, but which are out of step with the vast majority of equalities and human rights bodies (whose views are dismissed as “groupthink”, “campaigning”, or mere “fashion”).

Although GANHRI did not recommend downgrading the EHRC in response to this letter, in made several pointed comments about the failures on the EHRC in its report, emphasising that its ‘mandate should be interpreted in a broad, liberal and purposive manner to promote a progressive definition of human rights which includes all rights set out in international, regional and domestic instruments, including economic, social and cultural rights.’ The report also notes that the process for appointments is ‘not sufficiently broad and transparent’ to ensure independence, and that the EHRC is insufficiently plural. The report inists that the EHRC ‘take visible and clear steps to strengthen its working relationship with civil society organizations, including organizations that work to promote and protect the human rights of LGBTI people’.

Despite this, the EHRC has continued to operate in a way antithetical to its purpose of protecting human rights. This week, a Trans Safety Network investigation revealed the significant extent to which the EHRC has become institutionally captured by the anti-trans right. The investigation, through discussion with multiple former employees, highlights how opposing trans rights has become an institutional priority. This move has apparently been led by its chair, one of the December 2020 appointees, Kishwer Falkner. One ex-employee described Falkner as demanding that staff ‘immediately slam down on trans stuff’. Such appointments, paired with alleged threats to cut the organisation’s funding if it did not toe the line, has seen the organisation’s work become committedly anti-trans.

The Trans Safety Network investigation found that this change in direction has led to multiple resignations by staffers. Beyond this, there have been multiple public statements made by former Legal Directors, decrying the organisation’s abandoning of the human rights values it is supposed to uphold. For example, former Legal Director Grey Collier has condemned the EHRC for lacking independence, not upholding human rights for everyone, and for failing to understand the law. There also unconfirmed allegations that another legal director - Kate Spencer - has resigned specifically because her advice on amending the Equality Act 2010 was ignored.

Given this clear anti-trans agenda, it is therefore perhaps unsurprising that the EHRC published its letter recommending an amendment to the meaning of sex within the Equality Act 2010. However, we must not underestimate the extent to which such a change would harm trans people, and represent an utter abandonment of human rights norms.

What changing the Equality Act 2010 would mean

Under the current law, upon acquisition of a Gender Recognition Certificate, a trans person becomes their ‘acquired’ sex for all legal purposes. It is important to note that there is no distinction between sex and gender in UK law.

The proposal made in the letter from the EHRC is that, for the purposes of the Equality Act 2010, the term ‘sex’ be defined as ‘biological sex’, rather than its current definition of legal sex (ie what is recorded on your birth certificate, either at birth or as amended by a GRC).

The term ‘biological sex’ is not one which currently has a coherent definition in law. The leading case on the legal definition of sex, and of ‘biological sex’ is Corbett v Corbett. In his judgment, Ormrod J identified three components of ‘biological sex’, which are to be determined at birth and cannot be altered, even by subsequent surgical intervention. These components are chromosomal, gonadal, and genital. However, such components do not always exclusively point towards either ‘male’ or ‘female’. They may be inconsistent, or ambiguous. It is thus impossible to conclusively determine a person’s ‘biological sex’ based on any one of these characteristics alone. This is why the concept of legal sex was developed. Any suggestion to define sex using ‘biological sex’ is likely to amount to the same process as currently applies to legal sex - whatever is recorded on the birth certificate - but with the deliberate disapplication of the Gender Recognition Act.

The letter gives several examples of how the EHRC envisions this to apply in practice. Any single-sex women’s space (eg a hospital ward), women’s association (eg a bookclub for women), or association of lesbians would be allowed to automatically exclude trans women. The letter states that the current inability to automatically exclude trans women from associations of lesbians ‘impact on freedom of association for lesbians’. To support this point, the EHRC cite ‘FiLiA’ - a known anti-trans campaign group who run an annual conference promoting ‘gender critical’ ideas. This is depite the fact that trans women lesbians are simpy a sub-category of lesbians, much like eg disabled lesbians. There is no more reason to create a provision to allow associations to discriminate against and automatically exclude trans lesbians, any more than there would be disabled lesbians.

The letter is clear that, inline with most equality frameworks, the current law allows discrimination against trans people, excluding them from eg single-sex sports competitions, if this can be shown to be a proportionate means of achieving a legitimate aim. The letter confirms that the proposed changes are to ensure that no balancing exercise at all need be undertaken - trans people may be discriminated against to exclude them from single-sex spaces for any motivation whatsoever, on a purely abritrary basis.

Perhaps more concerningly than this, the current structure of the legislation means that service providers may be obligated to exclude trans women if they wish to remain squarely within the single-sex, or single protected characteristic, exemptions under the Act.

In addition to this, trans women would immediately lose access to certain mechanisms under the Equality Act 2010 which seek to address gender discrimination, for example, equal pay legislation. Trans women live in the world as women, and experience misogyny. Indeed, some research suggests that the pay gap for trans women remains the largest, compared to cis men, trans men, and cis women.