13 April 2023

The Equality Act row typifies our distorted gender identity debate


What is a woman? In an era where many seem to view gender and sex as interchangeable, what was once a straightforward question has become anything but.

After being asked for advice by Equalities Minister Kemi Badenoch, the Equality and Human Rights Commission recently published a letter suggesting that ‘on balance’ the Equality Act should be amended to make it clear that when it refers to ‘women’ it means women, as in biologically female people. It does not include any biologically male people, even if they identify as women, or hold Gender Recognition Certificates which entitle them to be treated legally as though they were female in some contexts.

This shouldn’t be too surprising. The wording of the Equality Act specifies that ‘woman’ means ‘a female of any age’: are we really meant to believe that when the Act was passed in 2010 it was intended to refer to a group based on anything other than biology?

Rather than being a non-story, however, the issue is deeply fraught. The interaction between the Equality Act and the Gender Recognition Act 2004 has been a longstanding source of confusion, since the latter piece of legislation states that a Gender Recognition Certificate means a person’s legal sex ‘becomes for all purposes the acquired gender‘, before going on to state a non-exhaustive list of exceptions where, actually, it doesn’t. But the Gender Recognition Act does make clear that biological sex is still recognised as distinct from acquired legal sex when it states, for instance, that of course it is legitimate for women’s sports to continue to exclude natal males – certificate or no certificate.

Gender-critical feminists have been calling for years for an amendment to clarify the meaning of sex in the Equality Act; they argue that organisations are routinely mistaken about the law as regards women and men as biologically defined groups.

Others, however, claim that to legally recognise the two sexes in this way constitutes a rolling back of rights for trans people. Trans activist Katy Montgomerie posted on Twitter that this was a proposal to ‘totally gut…trans protections from the [Equality Act]’. The argument here is that transgender women in particular will be disadvantaged if it is made clear that they do not possess the protected characteristic of female sex.

Some comments border on the hysterical. Trans activist and model Munroe Bergdorf said in an Instagram post that these changes ‘would ruin and cost lives’; the reliably shrill Jolyon Maugham KC tweeted that he has trans friends who are making panicked plans to leave the country as a result of this guidance.

In fact, affirming that women (and men) are protected from discrimination on the basis of their sex should not take anything away from transgender people.

Indeed, the Equality Act recognises nine distinct ‘protected characteristics’: age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex, and sexual orientation. Businesses and public services are not allowed to treat people unfavourably on the basis of any of these traits.

More to the point, legal rights for trans people have never been on the basis of being included in the protected characteristic of the opposite sex. Like everybody else, trans people are protected by virtue of their own sex, and in addition protected through the characteristic of gender reassignment. Specifically, the Act protects anyone who ‘is proposing to undergo, is undergoing, or has undergone’ a process of gender reassignment. All trans people will therefore have this protected characteristic, even if they have not transitioned.

So Montgomerie’s claim that these changes ‘would allow businesses, workplaces and public spaces to ban trans people from using the facilities’ is simply wrong. We are not about to see an epidemic of ‘no Irish, no blacks, no dogs’ style signs in shop windows: to bar people purely on the basis of being trans would continue to be unlawful discrimination, as it is currently.

In addition, trans people will also remain protected from discrimination if they are assumed to be a member of the opposite sex. If I am fired because my boss thinks I’m pregnant, it doesn’t matter if I am, in fact, not: this is ‘discrimination by perception‘ on the basis of pregnancy or maternity, a protected characteristic.

Trans people don’t even need to be ‘passing’ to be protected from (opposite-) sex-based harassment (as well as that based on gender reassignment). The EHRC says that harassment can include cases where you are ‘treated as though you have a protected characteristic, even if the other person knows this isn’t true’. So a cartoon shared by Montgomerie which claims that it will become legal to subject trans people to homophobic abuse if they are, biologically speaking, in an opposite-sex relationship, is also straightforwardly incorrect.

The same error is repeated again and again in a bizarrely grandiose viral thread by feminist historian Dr Fern Riddell. No, legal recognition for members of the female sex will not make it permissible to shout slurs at anybody; it is rather dispiriting that thousands of people find this suggestion plausible enough to retweet.

The histrionics and misinformation surrounding this recent announcement provide a neat encapsulation of the whole gender identity debate. The ‘gender critical’ position is generally that a person’s decision to transition is their own business, and that they are free to have it recognised by the state; but that sex cannot be changed and remains relevant, and therefore sex should also be recognised.

The ‘gender ideology’ position, on the other hand, seems to in effect be that sex shouldn’t be recognised by the law, and that it should be taboo for individuals to recognise it in a private capacity either. This is no longer about protecting trans people from discrimination; as we have seen, they are and will remain protected. Instead, it is about an ideological attachment to the idea that there is no such thing as the female sex, as a category distinct from males who might wish to be included in it.

People of the female sex exist, and are manifestly a disadvantaged group in pretty much every culture, everywhere in the world, throughout history. Why on earth, then, should this not be officially recognised by UK equality legislation alongside recognition of other protected characteristics?

There is a clear rationale for laws that offer biological women protection from unfair treatment. If the word ‘female’ does not refer to this group of people, then we replace protections for women with protection for a mixed-sex group who have nothing definable in common. This has no logical or moral justification.

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Ellen Pasternack is a writer and researcher.

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