What’s the problem?

Recent years have seen the replacement of the term sex by the term ‘gender’ in many areas including by public bodies, businesses, charities and wider society — particularly by those who seek to diminish the rights of women.

But the law that protects us all from discrimination and harassment — the Equality Act 2010 — is absolutely clear that the protected characteristic is sex, not gender.

It’s in black & white. In the Equality Act.

The Equality Act 2010 also gives specific exemptions that allow organisations to provide single-sex spaces for women and girls. Although the Act can be used to provide single-sex spaces for men as well, it is women who need them most for their privacy, decency and safety. And it is their safe spaces that are under threat but those who misunderstand or misrepresent the law.

If the term ‘sex’ has been replaced by ‘gender’, single-sex spaces become impossible to define; and if they can’t be defined, they cease to be what they need to be.

What the law says

The law as it stands helps to prevent men with malign intent from simply declaring themselves to be women and thus access these safe spaces but there have been calls for it to be considerably slackened or removed completely.

Two Acts of Parliament are relevant here.

Gender Recognition Act

One of the main reasons the Gender Recognition Act 2004 (GRA) was enacted in the first place was to allow trans people to marry someone of the same sex. Since the legalisation of same-sex marriage in 2014, this reason has disappeared.

However, the GRA provides a straightforward and inexpensive way to get a birth certificate changed to state that the holder is of the sex they are not.

All an individual needs to do is provide:

  • a diagnosis of ‘gender dysphoria’ from a recognised medical practitioner
  • a second medical report from someone such as their GP of any treatment they may have received — though no treatment (medical or surgical) of any kind is required
  • evidence they have ‘lived in the acquired gender throughout the period of two years’ — this could be as simple as evidence they have been using a different name
  • a fee of no more than £140.

The information provided is checked and approved by a small panel of legal and medical experts. The applicant does not appear in front of the panel: it is purely administrative.

The vast majority of these are accepted, with one panel judge saying she deals with about 200 applications a year but over 14 years, has refused only three.

Once the paperwork is accepted, the applicant will receive a Gender Recognition Certificate (GRC). The Registrar will note the individual in a secret register and alter the register of births, switching the person’s registered sex from male to female or female to male. The Registrar then issues a new birth certificate that gives no indication whatsoever that the sex marker on it has been swapped. The individual now has a ‘legal sex’ different from their sex.

Thus even birth certificates are not a definitive record of a person’s sex and cannot be relied upon, particularly in determining single-sex exemptions.

Legal fiction

Despite the claims of some, holding a GRC doesn’t actually change the sex of its holder. Reality is not so easily manipulated or fooled: the individual’s sex has not changed. Legal sex is simply a fiction.

The GRA states that the GRC holder’s legal sex is to be accepted ‘for all purposes‘, but then goes on to list numerous exceptions including sport, pensions, parenthoodpeerages and sex-specific offences (eg rape) — and single-sex exemptions under the Equality Act are based on sex, not legal sex.

The Equality Act 2010 generally prohibits discrimination on several grounds, including sex, but there are exemptions for such things as single-sex services and employment where it is an occupational requirement that the person be of one sex or the other. A GRC does not change this and it is the sex of the individual that counts, not what their birth certificate might say.

Some claim to have been ‘born in the wrong body’, but such ideas invoke notions of Cartesian dualism: that our mind is somehow distinct from our bodies. This can be seen as a ploy to create distance from the immutable facts of the biology and binary of sex.

Some people clearly are dysphoric about their bodies and wish they were different and some will feel relief after taking hormone treatments or undergoing cosmetic surgery. That relief is welcome, but they still haven’t changed their sex.

Self-ID

Supporters of self-ID say that the above requirements for obtaining a new birth certificate in the other sex are far too difficult, time-consuming, expensive, intrusive and demeaning and that all it should entail is a declaration by an individual that they are the sex they are not.

Proposals for ‘reform’ include abolishing the need for a diagnosis of gender dysphoria, any second medical report, the small fee and any evidence of a name change, etc. The process would become as simple as obtaining a provisional driving licence.

There was widespread opposition to these proposals from women’s groups.

After several delays, the UK Government announced on 22 September 2020 that it will not be taking forward their previous proposals to significantly relax the hurdles in the Gender Recognition Act 2004 that would have allowed males a quick and easy means to declare themselves to be female.

Although this is now off the table — in England and Wales, at least — the onslaught against women will continue in other areas. In Scotland, similar changes to introduce self-ID have been cancelled but the Scottish Government is being challenged in the courts over legislation that effectively changes the definition of woman to include a man who says he’s a woman.

One area that has already seen the erasure of sex in equality monitoring forms used by organisations.

Language and meaning of words are important and proper use and understanding of terms is vital so that the public is aware of what rights they have and what an organisation’s duties are. Any confusion or inconsistency over meaning may prevent or dissuade people from accessing their rights in law.

Monitoring equality

The Equality Act places obligations on organisations in terms of not discriminating. To help comply, organisations frequently compile monitoring data so they can know for themselves whether or not they are complying and demonstrate this to others by publishing aggregate data.

The Equality and Human Rights Commission offers little advice on equality monitoring. They do say:

Do I have to monitor equality?

As a part of your routine practices, your organisation should be monitoring and reporting on a whole range of aspects of your activities including:

  • income and expenditure
  • health and safety
  • sickness absence
  • training
  • environmental issues and so on.

In order properly to fulfil their public sector equality duty and (in the case of those public authorities to whom they apply) the specific equality duties, public authority employers may be required to monitor matters such as recruitment, promotion, training, pay, grievances and disciplinary action by reference to the protected characteristics of their workers. Currently, there is no legal requirement on most organisations (including private sector businesses, smaller public bodies, voluntary and community sector organisations) to monitor and report on their staff profile. Nevertheless, doing so can help an employer to assess whether, for example, they are:

  • recruiting employees who are disadvantaged or under-represented
  • promoting people fairly whatever their protected characteristic
  • checking that women and men’s pay is comparable in similar or equivalent jobs, or because the work they undertake is of equal value in relation to factors such as effort, skill and decision-making, and
  • making progress towards the aims set out in their equality policy if they have one.

They go on to say:

Monitoring of equality-related issues (and taking action where the information suggests there may be a cause for concern) can also be used as evidence that your organisation is doing what equality law says you must do if a job applicant, worker or former worker brings a tribunal case against you (provided that it is relevant to the issues raised by the person making the claim).

But this contingent on the quality of the information an organisation gathers. If the information collected is wrong, misleading or refers to characteristics that are not on the list protected characteristics, the organisation risks losing a case brought to an employment tribunal. A tribunal is likely to be unimpressed if presented with equality monitoring data on ‘gender’ that includes, say, intersex as a category when trying to defend a sex discrimination case.

The EHRC further says:

It may also help you identify areas where taking positive action may be appropriate, for example by highlighting parts of your workforce where people with certain protected characteristics are disproportionately underrepresented.

However, they provide little information on what they would consider best practice. We hope they will rectify that omission in the near future. They do stress that:

It is important that you only collect information that you can use effectively. You need to be clear why you are asking applicants and workers for information and what you will use it for.

This also has implications in respect of the General Data Protection Regulation (GDPR): an organisation could well use the justification of monitoring of protected characteristics under the Equality Act as the lawful basis for collecting information on the protected characteristics, but it’s difficult to see how they could collect personal information on ‘gender identity’ on that or any other lawful basis.

Many organisations misstate the protected characteristics under the Equality Act 2010 in their equality and diversity policies, reports, privacy and GDPR statements and in equality monitoring forms.

This can be as simple as using the term ‘gender’ instead of sex, possibly thinking they are interchangeable terms. Some ask about ‘gender identity’ and ‘gender expression’ or use terms such as ‘non-binary’ and ‘gender-fluid’, perhaps asking, ‘What best describes your gender?’ on forms.

These terms are not protected characteristics under the Act and are not even defined in the Act. They all add to the confusion about how and why individuals have legal protection against discrimination and harassment.

The term ‘gender’ has sometimes been used as a polite way of referring to a person’s sex, but the term nowadays comes with a lot of baggage and means entirely different things to different people and the subject of much debate. In terms of the protected characteristics, this is irrelevant as it is not a protected characteristic.

Others make more egregious errors such as presenting intersex conditions as if they are a sex class. or thinking that ‘transgender’ is a sex class, perhaps including that as an option when asking for sex or even ‘gender’. Gender reassignment is a protected characteristic but it is not related to the protected characteristic of sex (or sexual orientation).

Definitions

The Act clearly defines the protected characteristic of sex at section 11:

In relation to the protected characteristic of sex—
(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.

The Act, at section 212, states what is meant by ‘man’ and ‘woman’:

“man” means a male of any age;
“woman” means a female of any age.

This should be entirely obvious but attempts to obscure what the terms mean must be challenged.

Sex is binary

Some might argue that there’s more than just men and women; more than just male and female. They are wrong in terms of biology but — as shown above — also in terms of the Equality Act.

Biology

Whether you’re a male or female depends on the gametes your body is structured to produce. Male bodies are structured towards the production of small gametes — sperm — and female bodies are structured towards the production of large gametes — eggs. There are no other gametes, so there are no other sexes. Just male and female.

Intersex/DSD

Where are intersex people in all this? Someone with an intersex condition — or Differences of Sex Development (DSD) — are still either male or female.

However, some think that asking about DSDs should be a part of any equality monitoring exercise. While it may be important for an organisation to know if an individual has a DSD — and some can face discrimination simply because they have a DSD — it is not something covered by the Equality Act. Asking an individual about this is likely to be considered asking for sensitive personal information under data protection laws, so should only be asked if the organisation can establish a lawful basis for doing so.

Further information

Gender pay gap

When it comes to comparing the pay gap between female and male employees, the Equality Act (at s.78) unfortunately uses the term ‘Gender pay gap’, but the Act is clear that this refers to “differences in the pay of male and female employees”. The use of this term in this context cannot be used as a justification for substituting gender for sex when referring to the protected characteristic.