Ask your MP to Commit to Not Amending the Equality Act's definition of sex
On the 12 June 2023, Parliament’s Petitions Committee has scheduled a debate to discuss whether or NOT to amend the Equality Act to define ‘Sex’ as biological sex.
A guide on what to write and notes for your MP is below.
The more people who ask their MP to take part in the debates on the 12 June 2023 the better.
To write to your MP go to Writetothem.com
Tell your MP how you will be affected by changing the
Act, for example:
- You will not go shopping, to the theatre or cinema in case you need the loo and fear your right to pee is challenged. But as a trans woman, you cannot use the other loo as you fear being assaulted in the way these individuals suggest you wish to assault women. Or as a trans man you have no wish to cause havoc having a beard and entering the ladies loo. Point out that there are insufficient disabled loos, and they are for disabled people.
- You will stop going to the gym or pool because you have no changing facilities.
- When you are ill, you will be reluctant to see your doctor for fear of a hospital referral. Finding yourself the only woman in a men’s ward, or the only man on a women’s ward brings the fear of humiliation and becoming the ‘freak show’.
- If in your job of many years you provide personal and intimate services, you are worried your role could be challenged and your right to perform your job taken away.
- Any other situation you can think of.
The following information can be supplied your MP to enable
them to argue on your behalf.
Notes for Members of
Parliament
Petition Wording
Please Commit to Not
Amending the Equality Act's definition of sex
It has been reported that the
Government may amend the Equality Act to "make it clear that sex means
biological sex rather than gender." The Government has previously
committed to not remove legal protections for trans people, an already
marginalised group, but this change would do so.
More details
Currently, the Act protects trans
people from discrimination on the basis of both sex and “gender reassignment”,
regardless of whether they have undergone medical transition or hold a Gender
Recognition Certificate. It can allow trans people to access single-sex spaces
such as DV shelters, bathrooms and hospital wards.
The proposed change would remove a
legal protection for trans people and encourage discrimination. We ask the
Government to refuse this change to the Equality Act 2010.
Acronyms used:
BC: Birth certificate
OSSS: Organisations that
provide Single Sex Services
SSS&F: Single sex
services and facilities
Trans People: Transgender
& Non-Binary people
Trans woman: In these notes,
a trans woman is a person recorded as male (or boy) at birth, who lives permanently
as a woman in their affirmed gender identity.
Trans man: In these notes, a trans man is a person recorded as female (or girl) at birth, who lives permanently as a man in their affirmed gender identity.
1. More people signed a petition to support Not Changing the Equality Act than to change it.
It is worth noting the petition which requested that the Government commit to NOT amending the Equality Act's definition of sex
received at 138,886
signatures.
The petition which requested an Update the Equality Act to make clear the characteristic“sex” is biological sex, obtained almost 30,000 less at only 109,463 signatures,
2. This is not just about whether trans people are given safe access to public toilets in their affirmed and lived gender, but also about their access to important and essential services.
Amending the Act in the way proposed will mean trans people
who live permanently in their affirmed gender, a proportion of whom will have
obtained gender recognition in law for all purposes, will no longer have a
right to access without discrimination:
·
Public or toilets of their affirmed gender,
·
Changing rooms in shops, gyms, and swimming
pools,
·
Domestic Violence Services
·
Sexual Assault services
·
Hospital wards for people of their affirmed
gender
·
Other Single Sex Services
·
Prison facilities of their affirmed gender.*
On March 31 2022 there were 49 transgender prisoners in
female prisons, of these just six were trans women (i.e. recorded as male at
birth). There were 181 in the male estate, 13 were trans men (i.e. recorded as female
at birth).[1]
According to the Government response to an FOI request, from 2016 to 2017 there were 7 recorded sexual
assaults on a female prisoner by a trans woman whilst in the female estate. Five
were committed by one prisoner: Karen White. White was convicted of 2 sexual
assaults, 2 further sexual assaults and a rape were left on White’s file.
[* In 2019 the relevant
prison regulations were further amended to give senior prison staff the
discretion to review every incarcerated trans person, in consultation with
medical and other experts, to protect the physical and emotional wellbeing and
safety of the trans prisoner and all other prisoners. Damien Hinds MP updated
MPs on the 21 February 2023, saying that since the 2019 reform of the prison regulations*
there have been no further recorded assaults by trans women in the female estate.[2]
Despite Hind’s update, the Government
further amended the regulations in October 2022 so that trans women with male
genitalia, or who are convicted of sexual offenses will not serve their
sentence in the general women’s estate unless there are exceptional
circumstances.]
Amending the Equality Act to define sex to mean sex assigned
at birth will significantly impact the current rights of trans people to
employment with Organisations that provide Single Sex Services (OSSS), and
their rights to use Single Sex Services and Facilities (SSS&F). Some will
lose access to jobs they currently have in Domestic Violence Refuges and rape
services. Trans women have successfully worked for SSS&F providers for 25
years, and for 15 years they have been able to access SSS&F with no reports
of inappropriate behaviour by trans people towards women either employed by or
using Single Sex Services.
Trans women who have experienced domestic violence (DV) or
sexual assault and /or rape will be victimised, and to exclude a very small
group of trans women at the time when they desperately need such services is
immensely cruel.
Trans people who are unwell will avoid healthcare for fear
of being refused a hospital bed in a gender appropriate ward. Trans women would
risk abuse from male patients, and trans men will cause distress to female
patients. Trans people who remember the 1960s to early 2000s can give myriad
testimony to how discrimination within the NHS impacted their health.
3. In practice, Organisations which provide Single Sex Services have not needed to use the exceptions already afforded by the Equality Act.
The Equality Act already allows OSSS to exclude all
(any) trans people, if the OSSS can show they have a proportionate and
legitimate basis for that exclusion. Currently no OSSS has needed to apply
to the Courts to have that right enforced, and there have been less than a
handful of cases where trans people have applied to the Courts to have access
to SSS&F enforced. For example, when Domestic Violence Refuge organisations
have asked women residents who had experienced domestic violence, whether trans
woman who are victims of domestic violence should be allowed residence, they
were happy to provide refuge to trans women.
4. Altering the Equality Act to allow OSSS to not recognise the affirmed gender of a trans person as their legal sex will only impact a very small number of the small number of trans people who might need to access SSS&F.
Almost all trans people who transition and obtain a GRC and
acquire a new sex for all purposes[3]
have no wish to cause distress to others and they recognise there are limited,
but necessary circumstances where women born female would not wish them to be present.
Amending the Equality Act to allow OSSS to exclude trans
people with a GRC and a new BC, will not alter the rights of other trans people
without a GRC. The law clearly says they have a right not to be discriminated
against if permanently living in their affirmed gender role. However, the Act
already allows trans people to be excluded from OSSSs or SSS&F if they have
a proportionate and legitimate basis for doing so.[4]
5. Proving Sex at Birth is extremely complex and difficult.
Those arguing the Act needs amending want sex to mean ‘sex
at birth’. Proving this brings huge challenges:
(a)
Many people have lost their birth certificate
(BC)
(b)
Only those with a GRC are certain to have their
BC, but that will record their affirmed (new) sex at birth.
(c)
Trans people with a GRC are required to
surrender their original BC in order to receive a new BC.
(d)
To determine whether a BC was one provided
following gender recognition would require the Government to disclose to OSSS
how to tell the difference between a 'recorded at birth' BC from a ‘GRC based BC’.
Disclosing how to determine the difference between a
‘recorded at birth’ BC from a ‘GRC based’ BC, would destroy the core right to
privacy contained in the Act following the decision of the European Court of
Human Rights in Goodwin & I v UK (2002)[5]
Doing so would mean the UK Government faciung international
condemnation particularly from the Council of Europe, and potential exclusion
from membership of the Council. The EU’s
Commission & Parliament would also condemn such a move, and potentially that
could impact further discussion or negotiations with the UK. There would also
be very public condemnation from the UN and many of its countries.
Having to prove one’s sex at birth would mean the BC becoming
some type of national ID card. However, anyone can buy a copy of any person’s BC
and so for 30 years BCs have stated they are not to be used as proof of
identity.[6]
6. Altering the Equality Act to clarify that ‘sex means biological sex’ has been confirmed by leading experts to be contrary to a large body of international Human Rights Law.
In April 2023 Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, condemned the government rhetoric and in particular the advice given in February 2023 in a letter to the Rt Hon. Kemi Badenoch by Baroness Kishwar Faulkner, the chair of the EHRC Commissioners. In his official report the Independent Expert wrote that.
The EHRC however specifically conceded that, in the context
of the letter, the intended meaning of the term “biological sex” is to define
women as “women who are not trans.” As one Commissioner elaborated: “under the
Equality Act, […] a trans woman who does have a GRC is a woman under the
current case law. […] if the government decides to make the amendment, they
don’t need to define biological sex, they can do it by way of exclusion of the
GRA.[7]
Any change to the law to exclude those who have obtained recognition
of their affirmed change, would makes the process of gender recognition and a
new birth certificate meaningless in many contexts and would undermine the
functions and purpose of the Gender Recognition Act 2004 s.9 (1), which provides
that:
9 (1)Where a full gender
recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired
gender (so that, if
the acquired gender is the male gender, the person’s sex becomes that of a man
and, if it is the female gender, the person’s sex becomes that of a woman).
The Independent Expert wrote that in his opinion:
this action of the EHRC is wholly unbecoming of an
institution created to “stand up for those in need of protection and hold
governments to account for their human rights obligations” (mission
statement, EHRC webpage; emphasis added).[8]
The EHRC had the temerity to suggest changing the Act would
allow trans men to ‘no longer experience discrimination’ in terms of SSS&F.
But trans men have absolutely no desire to use services that are exclusively
single sex services for women.
A handful of trans men will conceive and give birth. All say
they are treated with respect and care when accessing maternity services. Creating
a rule where maternity services can only be accessed by natal women enshrines
the rights of trans men, but they can already access such services, and
ultimately any change to the law may make it easier for some staff and patients
to complain about the presence of a trans man in maternity services.
8. Our scientific & legal understanding of what is meant by biological sex has moved beyond ‘a binary of chromosomes’.
Since
the 1950s there has been a body of scientific literature that explores the link
between genetic influences, biochemical development, brain development, and
their impact on gender identity. Biological sex is not simply a case of one box
or the other. Around 98% of people grow up with the gender identity expected of
the sex assigned to them at birth. What counts as biological sex may appear to
be simple for them. For the 2% it is far more difficult and scientific
understanding is still limited.
There
are the 0.05 to 1% of individuals[9]
who have a Difference (or Disorder) in Sex Development (DSDs).[10]
They range from mild to significant visible
DSDs from hypospadias[11]
to babies with ambiguous genitalia. Children born with Turners or Klinefelter
syndrome do not have conventional XX or XY chromosomes, while some non-visible
DSDs are not diagnosed until adults seek treatment for infertility.[12]
Women with Partial or Complete Androgen Insensitivity Syndrome (PAIS or CAIS) are
registered at birth as female but are found to have XY male chromosomes when
they fail to menstruate.[13]
Those such as Caster Semenya may develop hyperandrogenism (raised testosterone
levels) but that does not mean they feel like men. Many of the 1% of people
with DSDs will experience gender incongruence like trans people, but only a
small proportion will eventually transition to living permanently in the gender
opposite to the sex assigned at birth.
For
the 1% of people who do not appear to have a DSD, but who grow up with a transgender
identity, the lack of specific evidence of a DSD is often used against their
claim to be a member of the opposite natal sex. However, studies of people with
DSDs have informed the understanding of trans people. Though the science is
limited, there is acknowledged evidence of differences between male and female
brain structure research which suggests a disparity in the brains of those who
identify differently to their sex as assigned at birth, highlighting a
multifactorial underpinning of gender identities, but understanding the
molecular mechanism is a developing science and requires further research.
In 2018, the World Health Organisation (WHO) in the new International
Classification of Disease (ICD-11) removed trans presentations from the chapter
on ‘Disorders of adult personality and behaviour’ and placed them in the chapter
‘Conditions related to sexual health’.[14]
Gender dysphoria has been replaced with gender incongruence and the condition
no longer requires an individual to experience mental distress before being
able to access gender reassignment healthcare. The WHO explained:
we have a better understanding of the issues surrounding this
condition, and they are not related to a mental health condition[15]
Twenty years ago, in February 2003 the Lord Chancellor's Department issued
guidance titled Government Policy concerning Transsexual People, in
which they wrote:
Transsexual people do not choose
their gender identity. Transsexualism is an overpowering sense of different
gender identity rather than any sexual orientation: transsexual people may be
heterosexual, gay/lesbian or celibate. It is not a mental illness. It is a condition
considered in itself to be free of other pathology (though transsexual people
can suffer depression or illnesses like anyone else).[16]
© SW June 2023
[1]
Ministry of Justice (Her Majesty’s Prison and Probation Service Offender
Equalities Annual Report 2021/22, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/902685/FOI_200513008_assaults_involving_transgender_prisoners.doc
acc. 25 May 2023
[2]
Hansard Commons Chamber, Oral Answers to Questions Justice Transgender
Prisoners, Volume 728: debated on Tuesday 21 February 2023
[3]
The Gender Recognition Act s.9(1)
[4]
Equality and Human Rights Commission (2022) Separate and single-sex service
providers: a guide on the Equality Act sex and gender reassignment exceptions,
London: EHRC, April
[5]
Goodwin v. United
Kingdom, Application no. 28957/95, Council of Europe: European Court
of Human Rights, 11 July 2002, available at: https://www.refworld.org/cases,ECHR,4dad9f762.html [accessed 20 December 2004]
[6]
The reason that BCs contain a statement that they are not to be used as proof
of a person's identity is because in the 1970s and 80s the IRA would purchase copies
of the BCs of dead children to create new identities for their members.
[7]
Madrigal V (2023) United Nations Independent Expert on protection against
violence and discrimination based on sexual orientation and gender
identity Country visit to the United
Kingdom of Great Britain and Northern Ireland (24 April – 5 May 2023) End of mission statement, Geneva: United Nations Human Rights Office of
the High Commissioner for Human Rights at https://www.ohchr.org/sites/default/files/documents/issues/sexualorientation/statements/eom-statement-UK-IE-SOGI-2023-05-10.pdf
acc. 12 May 2023 Para 22.
[8]
Madrigal V (2023) United Nations Independent Expert on protection against
violence and discrimination based on sexual orientation and gender
identity Country visit to the United
Kingdom of Great Britain and Northern Ireland (24 April – 5 May 2023) End of mission statement, Geneva: United Nations Human Rights Office of
the High Commissioner for Human Rights at https://www.ohchr.org/sites/default/files/documents/issues/sexualorientation/statements/eom-statement-UK-IE-SOGI-2023-05-10.pdf
acc. 12 May 2023 Para 22.
[9]
Overall numbers of people with DSDs are difficult to count, they vary across
the world, with the highest incidence noted in Southern African populations.
Many DSDs are not visible, and their impact is only felt if a person is
struggling to conceive and has access to fertility clinical services.
[10]
Previously referred to as intersex conditions.
[11]
A Hypospadias is diagnosed when a boy has a urinary opening on the underside of
the penis instead of at the tip.
[12]
Witchel SF. (2018) Disorders of sex development. Best Pract Res Clin Obstet
Gynaecol. 2018 Apr pp 48:90-102. At https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5866176/,
acc. 12 Nov 2021
[13]
The South African athlete Caster Semenya was identified, assigned and
registered at birth as female and raised as a girl. Only as an adult was it
discovered that she had Complete Androgen Insensitivity Syndrome. This would
not have been controversial if she had not been an Internationally successful
athlete.
[14]
British Medical Association (2023) Gender
incongruence in primary care. British Medical Association, https://www.bma.org.uk/advice-and-support/gp-practices/gp-service-provision/managing-patients-with-gender-dysphoria#:~:text=gender%20incongruence%20is%20defined%20in,gender%20and%20the%20assigned%20sex
acc. 18 May 2023
[15]
World Health Organisation (2022) Gender incongruence and transgender health in
the ICD, WHO, https://www.who.int/standards/classifications/frequently-asked-questions/gender-incongruence-and-transgender-health-in-the-icd
acc. 15 May 2023
[16]
The Lord Chancellor's Department (2003)
Secretariat to the Interdepartmental Working Group on Transsexual
People, Constitutional Policy Division. Lord Chancellor's Department