Recently, the concept “legal sex” has become established in debate, with the Gender Recognition Act 2004 (GRA) described as enabling a “legal sex change”, whereby individuals “acquire a sex” or that their “sex is modified by a gender recognition certificate”.
In tandem, there have been calls to qualify the protected characteristic “sex” in the Equality Act 2010: a petition by the campaign group Sex Matters “to update the Equality Act 2010 to make clear that the protected characteristic of “sex” means biological sex” (as distinct from “legal sex” that is changed by the GRA) reached almost 110,000 signatures and is scheduled for Parliamentary debate on 12th June 2023. Are these commentators correct? Is this the right way forward for legislation?
Our position at Keep Prisons Single Sex is that this understanding of the GRA is incorrect.”Legal sex” has been misconceptualised, and that qualifying “sex” in legislation in any way or enshrining in law the misconception that sex can be changed has undesirable consequences and carries significant risk throughout the legislation and to sex-based rights under international law.
The GRA is an “Act to make provision for and in connection with change of gender”. Its purpose was to legislate for the privacy rights of “transsexual” people in light of a series of cases in the European Courts. The GRA does not effect a “change of legal sex”. Rather, an individual may obtain legal recognition of their “acquired gender”, with resultant consequence for their legal status.
The drafting of the GRA and prior case law supports this, as does the wording on a GRC. The recipient is described as being “for all purposes the gender shown…”: the phrases “legal sex” or “acquired sex” do not appear.
“Legal sex”, if there is such a concept in law, is simply an individual’s legal registration by the State of their sex observed at birth. This forms part of their legal identity, as defined by the UN Statistics Division. This registration is fixed just as sex observed at birth is.
That the sex of a vanishingly small percentage of births is incorrectly registered, necessitating correction to the register of births, does not change this. Neither does the fact that globally there are individuals whose births are not registered undermine the legal significance of sex registration at birth. Indeed, UNICEF has a goal to achieve universal birth registration by 2030.
Just as it is impossible to change sex in reality, the GRA cannot, by definition, effect a “legal sex change”. The exceptions to legal recognition of acquired gender in section 9(3) depend on the persistence of individuals’ “legal sex”.
If a GRC holder underwent a “legal sex change”, that individual would have legal recognition of both sexes, one as registered at birth and the opposite as “changed” or “acquired”. This is untenable and incoherent.
“Sex” in legislation refers to the registered sex observed at birth of persons legally recognised in law via State registration: that there are individuals globally whose birth was not registered does not refute this. “Sex” was not left unqualified in the Equality Act, due to omission or confusion.
There is no need to qualify what sex is in that Act or elsewhere in legislation: it is a fact registered at birth and part of a person’s registered legal identity. There is no basis in legislation for any other interpretation of “sex”.
The alternative proposition splits “sex” in legislation into two concepts: the unchangeable aspect “biological sex” or “actual sex” as it has also been termed (which is fixed, public and known), and the changeable “legal sex” (which is changeable via the GRA, private and unknown until declared). This needless complication creates uncertainty and impacts data collection that is predicated upon disaggregation by sex.
Splitting “sex” in legislation into different concepts (Why only two? Why these two?) carries risk. Each new concept requires a stable uncontested definition and the ability to be clearly and unambiguously evidenced in cases of uncertainty. Yet, as anyone who is familiar with the “trans debate” can attest, the meaning of concepts is far from immutable.
In our view such a move results in increased uncertainty that, due to the interwoven nature of legislation and policy, will have an inevitable widespread impact. There is no benefit to be derived from splitting sex as a legal term into different aspects, to perpetuate the fiction that sex can change: in fact, this carries with it significant disadvantage, that includes risk to other individuals’ Convention rights.
Kate Coleman is the director of Keep Prisons Single Sex
Recently, the concept “legal sex” has become established in debate, with the Gender Recognition Act 2004 (GRA) described as enabling a “legal sex change”, whereby individuals “acquire a sex” or that their “sex is modified by a gender recognition certificate”.
In tandem, there have been calls to qualify the protected characteristic “sex” in the Equality Act 2010: a petition by the campaign group Sex Matters “to update the Equality Act 2010 to make clear that the protected characteristic of “sex” means biological sex” (as distinct from “legal sex” that is changed by the GRA) reached almost 110,000 signatures and is scheduled for Parliamentary debate on 12th June 2023. Are these commentators correct? Is this the right way forward for legislation?
Our position at Keep Prisons Single Sex is that this understanding of the GRA is incorrect.”Legal sex” has been misconceptualised, and that qualifying “sex” in legislation in any way or enshrining in law the misconception that sex can be changed has undesirable consequences and carries significant risk throughout the legislation and to sex-based rights under international law.
The GRA is an “Act to make provision for and in connection with change of gender”. Its purpose was to legislate for the privacy rights of “transsexual” people in light of a series of cases in the European Courts. The GRA does not effect a “change of legal sex”. Rather, an individual may obtain legal recognition of their “acquired gender”, with resultant consequence for their legal status.
The drafting of the GRA and prior case law supports this, as does the wording on a GRC. The recipient is described as being “for all purposes the gender shown…”: the phrases “legal sex” or “acquired sex” do not appear.
“Legal sex”, if there is such a concept in law, is simply an individual’s legal registration by the State of their sex observed at birth. This forms part of their legal identity, as defined by the UN Statistics Division. This registration is fixed just as sex observed at birth is.
That the sex of a vanishingly small percentage of births is incorrectly registered, necessitating correction to the register of births, does not change this. Neither does the fact that globally there are individuals whose births are not registered undermine the legal significance of sex registration at birth. Indeed, UNICEF has a goal to achieve universal birth registration by 2030.
Just as it is impossible to change sex in reality, the GRA cannot, by definition, effect a “legal sex change”. The exceptions to legal recognition of acquired gender in section 9(3) depend on the persistence of individuals’ “legal sex”.
If a GRC holder underwent a “legal sex change”, that individual would have legal recognition of both sexes, one as registered at birth and the opposite as “changed” or “acquired”. This is untenable and incoherent.
“Sex” in legislation refers to the registered sex observed at birth of persons legally recognised in law via State registration: that there are individuals globally whose birth was not registered does not refute this. “Sex” was not left unqualified in the Equality Act, due to omission or confusion.
There is no need to qualify what sex is in that Act or elsewhere in legislation: it is a fact registered at birth and part of a person’s registered legal identity. There is no basis in legislation for any other interpretation of “sex”.
The alternative proposition splits “sex” in legislation into two concepts: the unchangeable aspect “biological sex” or “actual sex” as it has also been termed (which is fixed, public and known), and the changeable “legal sex” (which is changeable via the GRA, private and unknown until declared). This needless complication creates uncertainty and impacts data collection that is predicated upon disaggregation by sex.
Splitting “sex” in legislation into different concepts (Why only two? Why these two?) carries risk. Each new concept requires a stable uncontested definition and the ability to be clearly and unambiguously evidenced in cases of uncertainty. Yet, as anyone who is familiar with the “trans debate” can attest, the meaning of concepts is far from immutable.
In our view such a move results in increased uncertainty that, due to the interwoven nature of legislation and policy, will have an inevitable widespread impact. There is no benefit to be derived from splitting sex as a legal term into different aspects, to perpetuate the fiction that sex can change: in fact, this carries with it significant disadvantage, that includes risk to other individuals’ Convention rights.
We agree that clarity is required: the wide variety of interpretations of the law as it currently stands is a testament to this. The most pressing questions are: What does “gender” now mean in legislation subsequent to the GRA becoming law and giving the statutory term “acquired gender” separate legal standing? What is the relationship between legally recognised “acquired gender” and the distinct protected characteristics of “sex” and “gender reassignment” under the Equality Act?
Surely these questions are more urgent and relevant than attempts to reconceptualise sex in legislation by splitting it into a changeable and an unchangeable aspect? Above all, we urge a cautious and critically reflective response, rather than a reactive one.