The concept of Trans Rights in the UK have been under attack publicly for seven years now. It started with outrage at the idea that the Gender Recognition Act could be reformed to make it easier for trans people to change their legal sex/gender. Now the UK government (after both ditching GRA reform in England and Wales and currently attempting to kill GRA reform in Scotland) are considering amending the Equality Act in the opposite direction.
The Equality Act includes a list of ‘protected characteristics’. These include age, race, disability, sex, sexuality and gender reassignment (that one’s us). It sets out that it is unlawful to discriminate against people with those characteristics.
It currently protects trans people’s right to access services and spaces as the gender they are instead of the gender assigned to them at birth. This means that a trans woman’s access to women only services is protected for example (with a few exemptions). The government has been considering changing this indirectly by redefining the protected characteristic of sex to be entirely biological. This would mean that in the eyes of the law that trans men would be seen as female, trans women would be seen as male and non-binary people would be seen as whatever they were designated at birth.
In February the Minister for Women and Equalities Kemi Badenoch wrote a letter to the head of the Equality and Human Rights Commission (EHRC) asking for advice on a potential new amendment to the UK’s Equality Act that would define sex as purely biological. This comes after years of campaigning by anti-trans hate groups who seek the right to exclude trans people from many areas of life because of their sex assigned at birth.
EHRC chair Kiswer Falkner has now published the EHRC’s response to this letter.
It makes for some ominous reading.
Broadly the letter states that:
“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.”
The letter gave examples of what these ‘positives’ were, including allowing a hypothetical lesbian support group to bar transgender women, allowing a hypothetical women’s book club to bar transgender women, allowing trans women to be barred from anything deemed women only, even if they had a gender recognition certificate.
It also argues that changing the Equality Act in this way would allow pregnant trans men to come under protections for “pregnant women and new mothers” and claims that defining sex as biological sex would resolve this issue.
The letter went on to say there were three areas that could be potentially disadvantageous, all of which involve the problem that trans women would lose protections from sex discrimination but trans men would gain them because trans women would be legally male and trans men would be legally female.
The EHRC ends the letter by recommending that the government should consider this but they also say that this should be carefully worked on to consider a lot of different angles.
So what does all this mean?
It means that the EHRC as it stands currently considers that being able to bar transgender people from spaces and services that people require to live a life in our society is a positive outcome.
And the government is considering making this happen. It remains to be seen if Badenoch and the UK government will actually do this. But to those in our community who have been following the never ending moral panic over trans issues it is hard not to believe that this has been the direction of travel for a very long time. Badenoch has been very open about her views on trans issues and it is safe to say that she is very sympathetic to anti-trans hate groups.
This move would not be a direct ban of trans men/women from spaces. This change to the equality act could make banning trans people from spaces and services more lawful than it already is. It could allow providers of public toilets to block trans men from men’s toilets and trans women from women’s toilets without any fear of being unlawful.
This is deeply concerning and what many in our community have been fearing but it is important to remember that this letter is advice on a proposed change to the Equality Act. Nothing has happened yet.
But this is absolutely a red flag. The right for trans people to access the space they need to live any kind of life in the United Kingdom is on a pathway towards being removed.
Everyone needs to fight this however they can. Clearly some form of revision to the Equality Act is coming and being worked on right now that could be disastrous for our community.
The question is: when will this come?
Parliament can move slowly and it can move fast. This revision could possibly come before the next general election within two years or it could become a Conservative Party pledge for the next election. It could be argued that doing the latter would be smart for the Conservatives because they could claim to be ‘protecting women’ and bash Labour with it throughout the election on the idea that they would keep 10 Downing Street on a wave of culture war crap. But that is just speculation, the government has not given out any kind of timeline on this currently.
But whenever and how this manifests, we need to be ready. This is a fight we cannot lose.
Here is the letter from the EHRC: https://www.equalityhumanrights.com/sites/default/files/letter-to-mfwe-definition-of-sex-in-ea-210-3-april-2023.pdf
Here is the original letter from Kemi Badenoch: https://www.equalityhumanrights.com/sites/default/files/letter-from-mfwe-clarifying-the-definition-of-sex-for-the-effective-operation-ea-210-21-feb-2023.pdf
