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EHRC recommends that government consider biological definition of 'sex' in EqA 2010

On 4th April 2023, the Equality and Human Rights Commission (EHRC) published a letter to Kemi Badenoch MP, Minister for Women and Equalities, recommending that the government consider redefining 'sex' in the Equality Act 2010 ('EqA 2010') to mean biological sex.

The EHRC notes that sex and gender reassignment are protected characteristics under the EqA 2010. However, since the EqA 2010 was enacted, society has moved on considerably with issues relating to sex and gender identity. There is no definition of 'sex' in the EqA 2010, and some of the other language it uses is outdated. It may not be clear what protection it offers to trans people.

In addition, under the Gender Recognition Act 2004, a trans person with a gender recognition certificate (GRC) must be treated according to their acquired gender for all purposes. This concept of 'legal sex' has been recognised by the courts with the interpretation of the EqA 2010. However, the EHRC acknowledges that this has made the meaning of 'sex' in the EqA 2010 ambiguous so it can be hard for service providers to apply the law.

Although there is no straightforward solution to this issue, the EHRC explains that, in its view, a biological definition of 'sex' in the EqA 2010 would create legal clarity in eight areas (pregnancy and maternity, freedom of association for lesbians and gay men, freedom of association for women and men, positive action, occupational requirements, single-sex and separate sex services, sport, and data collection) while creating ambiguity or being potentially disadvantageous in three (equal pay, direct sex discrimination and indirect sex discrimination). Therefore, on balance, it merits further consideration by the government.

However, the EHRC observes that the implications of such a change would need to be carefully considered, with due regard to the Public Sector Equality Duty and any possible disadvantages for trans men and trans women. The EHRC also suggests that the government may wish to undertake a broader consideration, including by way of consultation, on how to approach issues of sex and gender. It notes that many would welcome an attempt to move the public debate on these issues to a more informed and constructive basis.

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