Thread by @2010Equality

What does "sex" mean in the Equality Act?

This paper by Julius Komorowski @podslaw in the @Lawscot Journal is really very useful.

lawscot.org.uk/members/journa…

In common law, sex was defined in Corbett v Corbett (the case of April Ashley) in 1971 on the basis of biology: chromosomes, internal and external sex organs (i.e. natural sex)

"sex change" was not seen as possible

Predating the EqA & the GRA, there was the case of A v Chief Constable of West Yorkshire Police [2005] - I've written about this before.

threadreaderapp.com/thread/1082599…

It was a 'forced choice' problem - a police officer has to be able to search either male or female suspects

The law lords found that to avoid discriminating against a transsexual M seeking to become a police officer if "visually & for all practical purposes indistinguishable” and had “done everything possible …in terms of hormones & surgery, they could search female suspects

Julius says "it is questionable whether the West Yorkshire Police decision remains of much relevance" as it has been superseded by the Equality Act & the GRA

[Me: nevertheless the language of visually indistinguishable etc... found its way into the EHRC Code of Practice]

The Gender Recognition Act 2004 entitles persons 18+ to change the sex recorded on their birth certificate where the applicant has gender dysphoria, “has lived in the acquired gender” for 2 yrs & intends to permanently. There is no requirement for surgery or hormonal treatment.

Upon the issue of GRC, “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)” (s 9).

But despite this change applying “for all purposes”, it “does not affect” a person's status as mother or father of a child (s 12), or their entitlement to a hereditary peerage (s 16).

The EqA provides that: “a reference to a person who has a particular protected characteristic [relating to sex] is a reference to a man or to a woman” (s 11). “Man” and “woman” mean respectively a “male” or “female” of any age (s 212(1)).

The EqA says “A person has the protected characteristic of gender reassignment (being 'transsexual') if... proposing to undergo, undergoing or has undergone a process ... of reassigning the person's sex by changing physiological or other attributes of sex” (s 7).

So what does EqA mean by "sex"?

Julius considers 4 options

1) Natural sex, w GRC holders an exception
2) Visual appearance "being “for all practical purposes” indistinguishable
3) Natural sex with s7 gender reassignment as exception ("=self ID")
4) Natural sex - no exception

Julius says option 2 (from the West Yorkshire Police case) should be discounted, given that it constitutes an attempt by the House of Lords to fashion a rule to ensure the observance of EU law in the absence of legislation by Parliament - now superseded by actual laws.

He also discounts option 3. Transsexuals as defined in s 7 EqA are protected against discrimination in general, but this does not mean they are the sex they identify (or propose to identify) with.

This is what @EHRC also say in their 2018 clarification equalityhumanrights.com/en/our-work/ne…

Option 1 he says "is perhaps the most superficially appealing to a lawyer" - given the GRA says “for all purposes”...... but .....there are problems with this because "a lawyer would normally expect the same term to mean the same thing when used throughout the same Act"

He points out where “sex” is used in the EqA in relation to sexual orientation (s 7), it must be describing something "closer to the notion of sex at common law"

(@AllianceLGB would agree with this but @stonewalluk would not. Stonewall says men can become lesbians)

[Me: Other places in the Act also use sex and 'woman' in ways that suggest they mean natural sex. e.g. in relation to women and maternity clauses s73]

And in relation to breastfeeding. .....

so when the act says "woman" in these sections it clearly means option 4 - since these are the people with the bodies that can gestate & lactate.]

So Julius concludes "there are two real possibilities [for sex in the EqA] First, that sex is meant in the immutable, common law sense. Alternatively, it is meant in the common law sense except for those who hold a GRC."

In relation to single sex services and a person without a GRC Julius therefore argues that

"the exclusion of trans persons legally of the opposite sex is not simply permissible but a necessary part of the statutory scheme."

"There is no need to invoke the exception for gender reassignment discrimination (sched 3, para 28), because they are not being treated differently because of their transsexual status."

He argues that para 28 only needs to be called on to justify the exclusion of

A) GRC holders from services for their acquired sex (e.g. MtF GRC holders from female services).
B) Transsexuals from services for their original sex (e.g. passing FtM from female services).

What standard would be required for exclusion of transsexuals from single-sex services? In his view the exception for gender reassignment discrimination should be interpreted in a manner consistent with the exceptions for sex discrimination.

i.e. "the standard should not be assumed to be any higher than that required for excluding, for instance, men from female wards in hospitals, and the like...and the proportionality of the justification could be assessed on a class, rather than an individual, basis."

"Just as one does not require evidence that a particular man’s behaviour, physical strength or inclinations made his presence in a female ward unacceptable, similarly justification for excluding some with the characteristic of gender reassignment might also be on a general basis"

NB: Julius's analysis supports a straightforward implementation of single /separate sex services based on natural sex.

It suggests that the @EHRC guidance on "case by case" & allowing people in based on "the gender role they present" is wrong and not in line with EqA.

NB: I can find no legal analysis published by the @EHRC that supports their guidance on this.