What side of the 'gender wars' is Equality Law on?
What side of the 'gender wars' is Equality Law on?
This has been a pretty intense week for me. I might write about it at some point but for now I don’t want to dwell on it. One thing that has come out from the cacophony is an accusation that my writing to explain equality law in the area of sex and gender identity is one-sided, biased, or otherwise coloured by prejudice. Ordinarily it’s not advisable to respond to these kinds of attacks, not least because I get them from both sides of this debate. Some trans rights activists think that I am a transphobic campaigner trying to take away their rights. Some people with gender critical or sex realist views think that I am a trans rights activist who focuses too much on describing what they consider to misogynistic law when I should be joining their campaign to repeal the Gender Recognition Act, the Equality Act, the Human Rights Act and to take the UK out of the ECHR, if that is what is needed.
I have not seen the need to respond extensively to these accusations. But I have decided to set out where I think equality law falls within this debate. This might explain why my explaining this law and attempting to counteract disinformation about it has led to me being unpopular among both ‘sides’.
The Trans Rights Activist Side:
Our current law makes provision for rights and protections based on gender reassignment that many trans rights activists defend and some gender critical or sex realist activists oppose. They include:
Anti-discrimination protection on the basis of gender reassignment: This has existed in our law since the 1990s. It makes it unlawful in certain situations for an employer or provider of goods and services to treat someone less favourably than another of the same sex on the basis that they are proposing to undergo, are undergoing or have undergone a process or part of a process of changing sex by changing physiological or other attributes of sex. This is a broad protection that initially arose as a result of EU equal treatment jurisprudence (P v S) but which was codified into UK law, first by regulations and then in s7 of the Equality Act 2010.
Protection from harassment and victimisation: In addition to direct discrimination protection, equality law also provides protection in certain context such as employment from unwanted conduct relating to gender reassignment which has the purpose or effect of violating that persons dignity or of creating an intimidating, hostile, degrading, or offensive environment for that person. These are objective legal standards, so merely being offended or feeling intimidated is not sufficient to meet the legal threshold. Nevertheless, this provides protection for trans people in the workplace, particularly where it can be shown that the purpose of unwanted behaviour was to create this environment.
Group-based protections based on gender reassignment: The Equality Act contains several provisions which require consideration of how acts or policies might negatively affect those who share the characteristic of gender reassignment. These provide scope for protection from facially neutral rules or policies which nevertheless put trans people at a particular disadvantage. There are justification tests and exceptions that complicate this, but the protection is there. There is also the Public Sector Equality Duty which places obligations on public bodies to have due regard to the need to achieve substantive equality between various protected groups and to foster good relations between them.
Gender Recognition: Following Goodwin v United Kingdom, European Human Rights law placed an obligation on the United Kingdom to provide for some system of gender recognition for post-operative transsexuals. The two areas of focus in Goodwin were state documentation in the form of a modified birth certificate and the right to marry in the acquired gender. The Gender Recognition Act 2004 set out a legislative scheme for changing a person’s legally recognised sex for some legal purposes. It removed the requirement for surgery and replaced it with a requirement to be diagnosed with gender dysphoria and to provide evidence that an adult over the age of 18 had lived in the acquired gender for two years. Once a full gender recognition certificate is issued, a new birth certificate is issued and that person’s legal sex will be deemed to be that of their acquired gender for the areas of law to which the Gender Recognition Act applies.
Changes to ID documents: Many government department operate a parallel policy whereby identity documents can be issued in a new sex, even where an individual’s legally recognised sex has not changed. For example, UK government policy on passports is that gender/sex markers neither reflect underlying natal sex or legal status as modified by a GRC. In the guidance, the Passport Office is clear that “Unlike the gender recognition certificate (GRC) the issue of a passport in an acquired gender does not give legal recognition of the change of gender. For passport purposes, the question is only whether the person has permanently adopted a new identity.” As such, the sex marker on an individuals passport is a reflection of either their biological sex or their permanently adopted new identity. To change one’s sex marker for identity-based reasons, the Passport Office needs evidence that a gender-identity change is likely to be permanent. This does not need to be a Gender Recognition Certificate and need not include any evidence of medical transition. To change a sex marker on a passport, an individual must supply the Passport Office with either a GRC, a new birth certificate issued in the new sex, or a letter from a medical professional and relevant supporting documentation
Anti-discrimination protection on the basis of gender identity belief: In the case of Forstater v CDG Europe, the Employment Appeal Tribunal recognised that gender identity belief is a protected belief under the Equality Act and, as such, Maya Forstater was protected on the basis of her lack of belief. This means that trans rights activists who believe that everyone has a gender identity and that gender identity effectively trumps sex (such that trans women are women and trans men are men) are protected from discrimination, harassment, and victimisation on the basis of that belief. This does not entail a right to harass those who do not share this belief, but harassment is assessed objectively because it is a legal concept.
The Gender Critical/Sex Realist Side:
Our current law also makes provision for rights and protections based on sex that many gender critical/sex realist activists defend and some trans rights activists oppose. They include:
The default of sex being biological sex: Under the common law, sex is defined as biological in nature, fixed and immutable ‘from birth at the latest’ (Corbett v Corbett). This position has been upheld in several cases since (Bellinger v Bellinger; A v Chief Constable of West Yorkshire Police; Green v Secretary of State for Justice; Forstater v CGD Europe; For Women Scotland v The Scottish Ministers I & II). At common law the default position is that an individuals sex is tied to their natal biological sex. Without a Gender Recognition Certificate, a persons legal sex is their biological sex.
Protection of single-sex services: The Equality Act makes provision for single-sex services. The establishment conditions for these services are mostly tied to factors that make it clear that they reference biological sex. Being protected under gender reassignment does not change a person’s sex and confers no rights to use the opposite-sex facilities. In Croft v Royal Mail the Court of Appeal clarified that being protected under the protected characteristic of gender reassignment "does not carry with it the right to choose which toilets to use". In For Women Scotland v The Scottish Ministers in the Inner House of the Court of session last year this legal position was again restated and affirmed explicitly: "those without GRCs remain of the sex assigned to them at birth and therefore have no prima facie right to access services provided for members of the opposite sex."
Where a single-sex service is established, there are further exceptions with permit a service provider to exclude an individual or group on the basis of either sex or gender reassignment where it is proportionate to do so. Proportionality requirements in law do not necessarily require a case-by-case assessment and service providers are permitted to introduce blanket rules so long as the blanket rule is in pursuit of a legitimate aim and necessary to achieve that aim. Most recently, the Supreme Court has affirmed this position in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department[2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.”
Protection of gender critical belief: Forstater v CGD Europe established that gender critical beliefs are worthy of respect in a democratic society and that discrimination or harassment on the basis of the fact that someone is sex realist or gender critical may be unlawful. This does not entail a right to harass those who do not share this belief, but harassment is assessed objectively because it is a legal concept.
Legal requirements on schools and employers based on sex: Schools are under a legal requirement to accurately record the sex of pupils. This can only mean their biological sex based on our current law. There are also requirements to provide sex separated toilet and changing facilities where they are offered on a communal basis. Similar obligations apply to the provision of sex separated facilities in employment contexts.
Where the law is unclear
There is a case going to the UK Supreme Court next month to settle the question of how the Gender Recognition Act and the Equality Act interact. It will decide some or all of the following:
Whether sex in the Equality Act means (i) biological sex or (ii) biological sex unless modified by a GRC.
Whether biological females are protected as a distinct group under the Equality Act.
How precisely the Schedule 3 exceptions which allow for single-sex services operate. If sex means sex as modified by a GRC these exceptions become more complicated to rely on and that can affect how useful they are in practice, given concerted campaigns to spread misinformation about the law here.
Whether single-sex associations defined by reference to biology (eg. Lesbian walking group, informal support network for female victims of male violence) are lawful. If sex doesn't mean biological sex, these are unlawful.
Whether trans men who become pregnant are protected from pregnancy discrimination. If a GRC modifies sex for the Equality Act they likely lose protection.
Whether sexual orientation is defined in the Act by reference to biological sex or biological sex unless modified by a GRC.
Given the contentious nature of the law in this area, it is unsurprising that some are presenting this as a culture war issue rather than a complex dispute about the meaning of an important anti-discrimination statute. Others are presenting this as an attack on the rights of trans people. It is therefore very important to be clear about what the Court will not be doing. Regardless of how the case is decided, it cannot and will not:
Remove the protected characteristic of gender reassignment.
Make it lawful to discriminate on the basis of gender reassignment in the provision of goods & services, employment, or housing.
Prevent services from offering a trans-inclusive service where proportionate.
Require a new analysis of biological sex.
Remove any human rights from trans people.
This is complicated law. Many activists and campaigners want it to be simple. It’s not because there are competing human rights law obligations at stake here. In this space, there are plenty of campaigners and very few people writing in an attempt to describe the law as it is and to combat misinformation and disinformation. Of those lawyers and academics associated with the trans rights activist side, I have yet to see an example of them explaining the law in a way that does not align with their side. That is a sign that they are campaigners first and lawyers second.
I made a conscious choice at the beginning of my involvement in this issue that what is needed most in this space is accurate description of the law as it is. That is what I have tried to provide. It has provoked criticism and sometimes attacks from both ‘sides’ of this debate. I’m fine with that. But I think it’s lamentable that this it has also resulted in me being accused of bias and prejudice from both sides too.
I have my own views. We all do. Nobody writing about an area of law is capable of switching their brain off to the point where they can simply not form a view about what the law ought to be. The question is not do I have a view on the politics of this; it’s have I said or written anything that is demonstrably false as a matter of law? If I have, I welcome challenge, to a point. I am happy to engage on the substance of the legal issues here. But sometimes there reaches a point where it is clear that someone has not read or has no interest in the legal material. Trying to discuss the law as it is with a campaigner that values ‘winning’ over accuracy is only going to get either of us so far.
I have no intention of abandoning my work in this area and the support that I have received this week has been incredibly heartening. To those who have defended me, I thank you sincerely.