Maya Forstater is co-founder of Sex Matters.
MPs will today debate a petition to clarify that the “sex” in the Equality Act means sex (whether someone is actually male or female), and not whether they have a Gender Recognition Certificate (GRC), which costs a mere £5, saying they are.
In fact they will be debating two petitions. One says, in short: “Make the Equality Act clear.” The other says: “Keep it ambiguous.” Almost a quarter of a million people have signed one or other, handing the hot potato of how to resolve the legal mess over sex and trans identities back to Parliament.
The Gender Recognition Act 2004 (GRA) purports to change someone’s sex “for all purposes”. It requires a doctor’s diagnosis, and evidence of a new name on their electricity bill and payslips, but no surgery or medical treatment. This legal conjuring trick causes legal chaos.
Sex was not invented in 1963, or even in 1975 when the Equality Act’s precursor, the Sex Discrimination Act, came in. Nor was it invented in 1970, when a judge asked to rule on whether the transsexual April Ashley and the aristocrat Arthur Corbett were legally married found that sex was a matter of “genes, gonads and genitals”.
When the Gender Recognition Bill was being pushed through Parliament, Lord Filkin justified the “for all purposes” clause on grounds of simplicity “and avoiding the need to spell out each and every instance in law” where sex is relevant. “It matters because, pretty obviously, we have been legislating for hundreds of years with reference to gender,” he said. “There are literally thousands and thousands of references to gender in legislation.”
Of course by “gender” he meant “sex”. Parliamentarians have not been legislating for hundreds of years about “non-binary”, “cisgender”, “genderfluid” or any of the other gender variations that were unwittingly let out of Pandora’s box that day, but about men and women, male and female.
These are categories so fundamental that there was never a need to define them. Sometimes these categories are referred to with the more sophisticated word “gender”, and sometimes with the more frank “sex”. (We disagree with Kate Coleman’s analysis on this site last week that there is a meaningful legal distinction between the two words, although we agree with her that the law needs to be clarified.)
The GRA relied on this linguistic bait-and-switch to make its magic trick work. But at its heart it was clear that it enables people to change the sex they are recognised as in law for certain purposes. Those purposes explicitly included the law relating to marriage and pensions, but not laws relating to parenthood, inheritance and succession, sex crimes or sexual consent.
Whether the GRA changed a person’s sex for the purposes of discrimination law was left ambiguous; presumably swept up in the “for all purposes” clause, but without legislators taking time to consider what this would mean in practice. Rather than work patiently through all the laws where sex plays a role, they included a “safety clause”. That clause enables further legal purposes to be added to the list those where a person with a GRC is not recognised as the opposite sex, in recognition of the fact that problems not foreseen in 2004 might arise in future.
In 2004 the Sex Discrimination Act contained a set of matching exclusions which allowed for lawful “gender reassignment discrimination” wherever it allowed for lawful sex discrimination. The 1975 Act had made it unlawful to put a “no women” (or no men) sign on the doors of Parliament, banks, pubs, professions, job adverts and the like.
But is also recognised that there are places and situations where sex-based rules are right and justified; changing rooms, toilets, sports, dormitories, women’s refuges, Girl Guides, jobs that involve putting your hands on other people’s naked bodies and so on. And in these situations people who did not like these rules had no recourse to sue for discrimination, either on the basis of sex or “gender reassignment”.
The Equality Act 2010 swept sex in with other strands of discrimination, and in the process some of these legal exceptions in relation to gender reassignment were carelessly mislaid. The Equality Act now appears to make it unlawful for a group of lesbians to form an association which is female-only; a male who identifies as a lesbian and has a government certificate saying he is a woman can sue for discrimination (and such males frequently threaten to do so, or simply threaten funders and venues).
Similarly, Girlguiding is not allowed to exclude someone male with a female certificate from becoming a Brown Owl, and taking young girls camping on their first trip away from home. Gym receptionists and publicans are expected to decide on a “case by case basis” which males in women’s clothing may be allowed into women’s changing rooms, showers and toilets (and they are not allowed to ask for or share personal medical information, such as whether that particular “woman” has had his penis removed).
It is almost impossible to talk about this legal issue without getting into the facts of life and of bodies. Parliamentarians who made these laws largely skirted these issues, leaving service providers and employers to pick up the pieces when inevitable conflicts arise between women and girls who simply want to have a shower in peace and privacy without any male people around, and male colleagues, classmates and strangers who want the right to use the women’s showers to validate their identity.
Sex Matters’ polling released last week found that the share of people who agree that it should be lawful to exclude transwomen (men who identify as women) from women’s services, associations and jobs outweighs the share who disagree.
Even more fundamentally, the confusion over the meaning of sex destroys organisations’ ability to think clearly about sex-based rules. When they ask themselves whether a rule that simply says “no males in the women’s showers” would be unlawful, they end up telling themselves that “some women have penises”, rather than thinking about why the female half of humanity might want to shower without any members of the male half of humanity nearby. Complaints processes and anti-harassment policies have been turned inside out, with the result that women who argue for sensible rules or complain about ludicrous ones find themselves accused of harassment.
In response to the petition and the debate this week, the Government needs to take responsibility for sorting this mess out. It can be done simply with a statutory instrument, using the power provided for by the safety clause in the Gender Recognition Act.
When it comes to the next election, the Conservatives may want to make political capital out of the fact that Rishi Sunak, unlike Keir Starmer, has not tied himself up in knots with ridiculous formulations such as “99.9 per cent of women do not have a penis”.
But this will fall flat with the increasing number of women – and men – who care a great deal about protections for single-sex spaces and services if he does not back up his words with action, and make the law clear.