WLS The Pears Article

Claire Cole (Head of Employment) and Ellie Matthews (Paralegal) at Hallmark Whatley
Hulme Solicitors consider the debate to change the legal definition of the word ‘sex’
to ‘biological sex’ in the Equality Act 2010.

The UK Government are currently consulting on whether the legal definition of the
word ‘sex’ should be changed to ‘biological sex’. The aim for this is to create a
distinction in the Equality Act 2010 between a person who was born a particular sex
and someone who has transitioned to become that sex. Under the Equality Act 2010,
‘sex’ is defined as a protected characteristic.

Kemi Badenoch who is Britain’s Minister for Women and Equalities stated that there
“is the consideration about whether the definition of ‘sex’ is sufficiently clear and strikes the
appropriate balance of interests between different protected characteristics.” There has
been some arguments to suggest that by changing the legal definition of the word ‘sex’
it will provide more clarity in the law, including in areas around single sex and separate
sex services.

Badenoch stated that “society has evolved considerably” in the last 13 years. “For
example, language has evolved: the Act uses the terms ‘sex’ and ‘gender’ at times
interchangeably, with the requirement on employers to report ‘gender pay gaps’ in fact a
duty to report on pay differences according to the protected characteristic of sex.”

Labour MP Tonia Antoniazzi stated that she recognised the passionate views on both
sides. She said: “Those who want the Equality Act to stay as it is say that trans people are
already using services for the opposite sex without concerns, regardless of whether they
have a gender recognition certificate or not, and that not allowing them to do so would be
harmful and detrimental to their human rights.

“It is therefore the responsibility of society and lawmakers to ensure that people are able
to access opposite-sex facilities, services and sports.”

Maya Forstater, who created the petition in favour of clarifying the law and who last
year won a belief discrimination case over her gender-critical views, believed a
biological sex definition would require “employers and service providers … to protect
individuals against both kinds of discrimination and treat everyone with respect”, and
would create two different strands of protection – one that is biological sex-based
and another that covers discrimination against transgender people.

SNP MP Joanna Cherry said that not changing the wording of the Equality Act would
leave the law “muddled”. She stated that “The Equality Act attempted to strike
reasonable balances between the rights of people with nine different protected
characteristics, including sex, sexual orientation, and gender reassignment. The protected
characteristic of gender reassignment is widely drawn – and rightly so. It is rightly not
confined to those who have undergone medical treatment or those who have a [gender
recognition certificate] (GRC). All transgender people are protected against discrimination
on the grounds of gender reassignment. That is right, and there is no intention to remove
that protection.”

Baroness Kishwer Falkner who is Chairwoman of the Equality and Human Rights
Commission, stated that it would create ambiguity and potential disadvantage in
others, including equal pay and direct and indirect sex discrimination.

Rishi Sunak suggested that considering biology is “important” in protecting women’s
rights. Although the EHRC states that changing the wording could bring more clarity
they also have concerns that it would be “more ambiguous or potentially
disadvantageous” when it comes to equal pay provision and sex discrimination. This
will therefore need further consideration.

However, this topic was debated on 12th June 2023 after a petition received 138,886
signatures to prevent the wording of the Act to be changed due to fears that it would
remove a legal protection for trans people and encourage discrimination. The
Government responded to this stating ‘This Government believes in individual liberty.
There are processes with appropriate checks to allow for those who wish to legally change
their gender. Changes to the Equality Act are not necessary.’

Claire Cole can be contacted on 01905 726600 or via email at
Claire.cole@hallmarkhulme.co.uk