Home > News > Response to letters between EHRC and Kemi Badenoch on defining sex as “biological sex” in the Equality Act 2010

6 April 2023   |    News

Response to letters between EHRC and Kemi Badenoch on defining sex as “biological sex” in the Equality Act 2010

The letters published on Tuesday between the Equality and Human Rights Commission (EHRC) and the UK Government’s Women and Equalities Minister, Kemi Badenoch, make for pretty sombre reading. These letters reflect a pattern over the last few years of the EHRC and the UK Government either being totally disinterested in (or actively opposing) protecting, upholding and furthering the human rights and equality of trans people.

We will undoubtedly say more over the coming weeks and months, particularly if the UK Government decides to pursue this course of action. For now, these are just proposals – they would have to go through consultation, and the UK Parliament, to actually become changes to the law. But these are some initial thoughts on the suggestion that “sex” in the Equality Act should be defined as “biological sex”.

It is not a new idea or novel suggestion to try and insist that trans people should be treated in line with our biological sex at birth by services, public bodies, and when we participate in public life. Historically, this is exactly how trans people were treated, and it meant that we could not go to work safely, use services that met our needs, or use public spaces freely. It meant that we experienced even higher levels of discrimination, harassment and abuse. Our lives were worse, and smaller, and we were hidden away from wider society.

However, this didn’t work. Trans people knew it didn’t work. Our families and friends knew it didn’t work. Service providers knew it didn’t work – ultimately lots of them did and do want to know how they can help and support us. And courts knew it didn’t work – not only that it didn’t work, but that it breached our human rights or meant that we faced discrimination. So many of the legal rights we have today come directly from court judgements – that say we have a right to live our lives and be recognised in line with our gender identity, and that it is not ok to treat us as our biological sex at birth all the time, as to do so greatly reduces our quality of life, our right to privacy, and our right to simply be recognised for who we are.

The letters between the EHRC and the UK Government suggest they think that the fundamental principle that underpins all progress on trans equality and human rights—that trans people should be recognised for who we say and know we are—should be opposed. That decades old legislation, court judgements, and decisions from public bodies, service providers and employers that have better enabled us to participate in public life in line with our identities have all been mistakes.

We know that they are not. Trans people deserve to live full lives, have privacy, and be able to participate in public life just as much as anyone else, and we deserve a Great Britain-wide National Human Rights Institution and a UK Government that agrees. Right now, we don’t have either, and they appear to be working to make this impossible.

As far as we can see, the change that is being discussed would be impossible without Brexit, because it clearly breaches Europe-wide equality law. It is also incompatible with the international UN gender equality treaty (the Convention on the Elimination of Discrimination against Women) which the UK has signed up to, and which is clear that gender equality is wider than just “biological sex”. It may also breach the European Convention on Human Rights, which the UK is still a signatory to, despite the UK Government apparently having little respect for the Convention’s rules.

We should also consider what this says about the current state of Britain’s national equality regulator, the EHRC. Their letter about this is ill thought-out, poorly evidenced and clearly biased. They admit at the end of the letter that there may be alternative ways to address concerns, which do not involve this wholesale overturning of trans rights, but they haven’t considered these options at all or presented them as a possible alternative. They also admit that the negative effects on trans people would need to be identified and considered, but again have failed to do so. There are reports that this position was decided by the EHRC’s Board, who were appointed by the UK Government, against the advice of their staff.

It seems pretty clear that, when it comes to trans rights at least, the EHRC is just not fit for purpose.


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