4 June 2024

Reforming the Equality Act is a clear Conservative win


The Tories have surprised us. This week, Minister for Women and Equalities Kemi Badenoch said outright that the Conservatives would amend the Equality Act to ensure women’s safety, and enshrine beyond doubt organisations’ legal right to make bathrooms, changing rooms and hospital wards genuinely single-sex. This is a shrewd move. Ordinary voters unaffected by intellectual pretension have never been able to fathom why anyone should make a fuss over telling grown-ups born male that, no, they can’t go into the Ladies.

We don’t quite know how technically the Tories would introduce the changes. The suggestion so far is that they might simply add to the Act a short provision defining the protected characteristic of sex as biological (ie birth) sex. This has the merit of being simple and understandable to the average voter.

On the other hand, it might cause problems with other provisions of the Act that prohibit discrimination on the basis of gender reassignment. Perhaps a more foolproof way would simply be to amend the provisions specifically allowing single-sex facilities (contained, for those who like to read convoluted legalese, in Part 7 of Schedule 3): a provision could simply be added declaring that limiting the use of changing-rooms, lavatories and so on to those of one birth sex did not amount to unlawful discrimination.

In either case, it probably also has to be made clear, as John Swinney pointed out when ritualistically decrying the idea on behalf of the SNP, that this matter should be deemed outside the competence of devolved authorities.

Nevertheless, provided that the amendments were competently done, the proposals would be sensible for several reasons.

First, allowing genuine sex segregation was clearly the intention of the single-sex provisions contained in the Equality Act 2010. But this hasn’t stopped attempts by the trans lobby to muddy the waters. For example, by invoking an incautious statement in earlier legislation from 2004 that a gender recognition certificate made you a member of your new chosen sex for all purposes including equality law.

Second, the Government has a point when it talks of safety. True, the danger of actual sexual predation from trans women in female-only facilities may be small (though it does happen). But the prospect remains, and it is unsettling. Women have a right to ask for protection even from small risks of that sort, and to be reassured that all proper measures are being taken to avoid them.

In any case, safety is not the whole story. Even if progressive elites habitually view the issue of men in women’s facilities (and vice versa, though few talk about this) as an intellectual problem of trans equality, many women simply find it disturbing to disrobe and carry out intimate functions in the presence of men they don’t know.

The reason doesn’t matter: for better or worse, separation by sex for these purposes is deeply ingrained. There is no reason why the law should not allow respect to be paid to this institution. Indeed, one can hardly blame the Tory party for building on the conservative tradition of fashioning laws around existing institutions rather than around abstract ideas such as equality.

Thirdly, the Government’s solution of allowing segregation by sex is neatly liberal while at the same time taking a good deal of wind out of the sails of the trans lobby. No one, please note, is saying that service providers must provide separate lavatories, changing rooms, and so on for people of a given birth sex, but merely that they may do so without liability. And this latter point is what would make life difficult for aggressive activists.

Until now, they have shamelessly weaponised the Equality Act: shouting down with its own interpretation of the legislation anyone unhappy with its demand to admit trans women on an equal footing with other women. The fact that it may well not be the law doesn’t matter: employers, hospitals and local authorities are risk averse and as often as not will knuckle under to avoid trouble. Making this tactic impossible for the future might well be the biggest advantage of the proposed reform.

All this has for once wrong-footed the Opposition (save for Nigel Farage’s followers, who will clearly agree wholeheartedly). Labour has been reduced to obfuscation. It insists that the Equality Act does not need changing or clarifying at all, despite the fact that, as it knows perfectly well, its interpretation is both uncertain and a matter of fierce controversy.

The Lib Dems for their part have simply said that the whole thing is an irrelevance, something that may go down less than well with their potential female voters in the shires who could well prefer not to be told that they are forced by law to share their loos and gym changing-rooms with bearded men bearing certificates that they identify as female.

On this score at least, the Tories may well have scored a resounding hit. And, by heck, do they need one.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.