Statement on the EHRC letter on the definition of 'sex' in the Equality Act

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Executive summary

On Tuesday 4th of April 2023, the Equality and Human Rights Commission (EHRC), a government body responsible for examining and advising on rights and equalities in the UK, released a short government-commissioned letter on amending the Equality Act 2010 (EA) to append the word "biological" to the protected category of "sex" [1].

LGBT+ Lib Dems strongly oppose this politically motivated, homophobic, and transphobic assault on British social norms and values.

There are three main objections to the letter, and to the underlying government proposal:

- This proposal, as defined by the EHRC, is likely to be highly privacy-invasive, homophobic, and transphobic if employed in UK legislation, with potential negative outcomes for a variety of LGBT+ people and society at large.
- It threatens to remove transgender people from participation in a substantial portion of public life, as well as potentially rendering the Gender Recognition Act impractical as a legal instrument for recognising the sex/gender status of transgender and intersex people.
- It reflects misogynistic, homophobic, and transphobic attitudes inherent to the UK Government, which have been instilled in the EHRC via political appointees designed to undermine the EHRC's own core values.

We urge people in positions of responsibility, public officials, and community leaders to join us in condemning this ill-considered proposal.

"Biological sex"

The phrase "biological sex" has several possible definitions. The EHRC report does not clearly state which definition, if any, it is appealing to. However, it seems to suggest that their understanding is that biological sex is, in the main, equivalent to sex assigned at birth, irrespective of later amendments to a birth certificate by intersex and transgender people (such as via a Gender Recognition Certificate) and irrespective of gender identity. Currently, in the UK, this choice is binary, and children with intersex characteristics may be assigned female or male, sometimes arbitrarily or with parental input [2].

This category is currently not legally recorded for a large number of intersex, transgender, and overseas-born people, and, as such, legislation to this effect would force a vast quantity of data collection and additional paperwork. Moreover, in nearly all cases, it would mandate access to highly private data for a wide variety of institutions, from government bodies to local community organizations. This would almost certainly affect a large number of cisgender people as well as transgender people, who may be forced to "prove" their sex via onerous and unnecessary legal processes. This is especially true for women and men who do not meet standard cultural expectations of what it means to appear as "female" or "male".

Problems with the EHRC's "legal clarity"

The EHRC glibly and, in our opinion, incorrectly, suggests that including the word "biological" in the EA would provide "legal clarity" by allowing, and potentially compelling, organizations which divide people on the basis of sex or gender to restrict admission to those categories on the basis of sex assigned at birth.

In doing so, the EHRC letter reflects substantial homophobic and transphobic bias. For example, it refers, strangely, to trans women in lesbian relationships (and their partners) as "legal lesbians", suggesting that LGBT+ identity is mediated by legal categories, and not by epigenetic factors [1]. This seems to indicate that it sees value in regulating what it means to be "gay", "lesbian", or "bisexual" through primary legislation. Interpreted strictly, the proposed change to the Equality Act would legally prevent lesbian and gay couples wherein one of the partners is transgender from accessing non-discrimination protections for LGB people. The letter itself seems to confirm this [1].

Moreover, the EHRC letter suggests that amending the Equality Act along these lines would render a Gender Recognition Certificate (GRC) practically useless in many cases [1]. In doing so, it seems to misunderstand the legal status of a GRC. A GRC, as stated by the UK Government itself, is not a requirement for having a change of gender, but a legal recognition of gender having already changed [3].

While the EHRC arguably overestimates, therefore, the impact of this EA change on people holding GRC, it could make acquiring a GRC impractical or even impossible. Under the GRA, it is required that a person "live in their acquired gender", and document this, in order to receive a GRC [3]. However, it is unclear how a trans person would, in fact, "live in their aquired gender" if they are barred from a wide variety of gendered environments.

Given the political motivations of this letter, it is possible that it is within the authors' intent to render the Gender Recognition Act unenforceable, and to regulate LGBT+ experiences along fundamentally homophobic lines. These political motivations are well-documented and have been institutionalized at the ministerial level.

The government is institutionally misogynistic, homophobic, and transphobic

It is probable that this EHRC letter, and the environment in which it was created, reflects deeply-held misogynistic, homophobic, and transphobic biases within the government, and within the EHRC itself. The former chair of the EHRC, David Isaac, has opined that the current leadership at the EHRC - appointed by former Prime Minsters Boris Johnson and Liz Truss - were placed there to further government agenda, policy, and talking points [4]. Senior appointees at the EHRC have advised women not to make complaints regarding gender and sex discrimination in the workplace [4]. Whistleblowers formerly employed by the EHRC have accused the EHRC of fostering "a hostile environment towards LGBT+ people", and have dubbed them "enemies of human rights" [5]. It is clear, therefore, that the EHRC cannot be regarded as a sympathetic, or even neutral, opining body.

The government, meanwhile, had stated as recently as 25 January, 2023 that it has no plans to amend the Equality Act [6]. However, statements by government ministers themselves, particularly Equalities Minister Kemi Badenoch, seem to contradict this official narrative [7][8]. Moreover, this in an environment wherein a number of notable and trusted voices in the LGBT+ community have stopped working with the government, citing a lack of trust and ingrained homophobic and transphobic attitudes [9].

Repeated judgements by European courts have established that transgender, non-binary, and intersex people are protected under the European Convention on Human Rights (ECHR) and by the Equality Act [10]. If the Equality Act is amended in any way that is trans-exclusionary, this may undermine the legal standing of the Act itself, leading to further legal challenge which could affect people of all protected characteristics. Given the government's entrenched euroskeptic attitudes, and dismissive attitude towards human rights in general [11][12], it is a reasonable concern that the wholesale repeal of human rights legislation may be their aim.

The EHRC claims that they are weighing up a situation of "competing rights", that is, between women's rights and trans rights [1]. However, it is unclear, even on the basis of their own report, which "women's rights" may be advanced or protected with this assault on the Equality Act. The claim echoes that of government ministers, who often claim that they are trying to protect women's rights. However, the UK government is complicit in maintaining a culture of prejudice and discrimination towards women, both within their party and in wider society. Despite strong advances in women's rights, the UK remains a country with above-average domestic violence rates, low public safety outcomes, and a large gender pay gap, relative to other OECD countries [13][14]. Moreover, senior Conservative party figures have faced consistent and credible accusations of sexual assault and misogynistic attitudes [15]. None of these negative outcomes for women are attributable to transgender people or to transgender rights [16][17]. Meanwhile, the government has blocked key legislation that would further women's rights, such as making misogyny a hate crime [18]. Kemi Badenoch herself has described progressive attitudes towards sexual assault and homophobia as "puritanical" [19].

Conclusion

British people are often some of the most socially accepting in the world on LGBT+ issues. However, the Conservative government's policy agenda is seeking to undermine this by normalizing discrimination towards thousands of LGBT+ people, women, and other underprivileged groups. LGBT+ Lib Dems implores public officials, people in positions of responsibility, and community leaders to strongly condemn this deeply transphobic, homophobic, and misogynistic campaign to undermine our hard-won rights.

Citations and further reading:

[1] EHRC letter: https://www.equalityhumanrights.com/en/file/43051/download

[2] Report on Intersex discrimination in the UK:

https://intersex.shadowreport.org/public/2016-CRC-UK-NGO-Zwischengeschlecht-Intersex-IGM_v2.pdf

[3] Government guidance on acquiring a GRC: https://www.gov.uk/apply-gender-recognition-certificate
[4] Politicization of the EHRC: https://www.ier.org.uk/news/the-ehrc-is-becoming-a-political-instrument-former-chair-says/

[5] Transphobia and homophobia at EHRC: https://www.vice.com/en/article/bvnymd/ehrc-staff-quitting-transphobia

[6] Government response to petition calling for no changes to the EA: https://petition.parliament.uk/petitions/627984

[7] Homophobic and transphobic statements by Equalities Minister Kemi Badenoch: https://www.attitude.co.uk/news/uk/kemi-badenoch-mp-appointed-equalities-minister-416513/

[8] Badenoch blocks Conversion Therapy legislation: https://www.attitude.co.uk/news/uk/equalities-minister-kemi-badenoch-pauses-conversion-therapy-ban-417290/

[9] Senior advisors on LGBT+ issues withdraw from Equalities department: https://www.theguardian.com/world/2021/mar/10/government-adviser-quits-over-hostile-environment-for-lgbt-people

[10] EU case law on transgender issues http://www.pfc.org.uk/caselawecthr.html

[11] Concerns over government attitudes to human rights: https://www.hrw.org/news/2022/10/26/new-uk-prime-ministers-cabinet-raises-rights-concerns

[12] Transphobia in the UK observed internationally: https://www.vice.com/en/article/dypk8q/trans-people-leaving-uk

[13] Gender pay gap data: https://www.statista.com/statistics/934039/gender-pay-gap-select-countries/

[14] Violence against women data: https://data.oecd.org/inequality/violence-against-women.htm

[15] Conservative misogyny and sexual assault allegations: https://www.itv.com/news/2022-07-01/all-the-tories-embroiled-in-sexual-misconduct-allegations-since-2019

[16] Womankind on the perceived conflict between women's rights and trans rights: https://www.womankind.org.uk/no-one-of-us-can-be-free-until-everybody-is-free-womankinds-stance-on-trans-rights/

[17] Trans rights are women's rights: https://www.aclu.org/news/lgbtq-rights/trans-rights-are-womens-rights

[18] Government kills misogyny amendment: https://www.theguardian.com/society/2022/feb/21/ministers-to-reject-making-misogyny-a-hate-in-england-and-wales-police-bill

[19] Badenoch skeptical of #MeToo era attitudes: https://www.politicshome.com/news/article/excl-tory-rising-star-kemi-badenoch-hits-out-at-puritanical-millennials-offended-by-friends