The UK government is considering changing the legal definition of gender

Kemi Badenoch commissioned the Equality and Human Rights Commission (EHRC) to investigate how the legislation worked after Holyrood passed the Gender Recognition Reform Act (Scotland).

In her letter to the Watchdog, the Tory minister said there were concerns “whether the definition of ‘sex’ is sufficiently clear and strikes the appropriate balance of interests between different protected characteristics”.

Passed by MSPs before Christmas, the law eliminates the need for a medical diagnosis for a Gender Recognition Certificate (GRC), cuts the waiting time from two years to six months, and lowers the age of admission from 18 to 16.

As it passed through Parliament, ministers and supporters of the law insisted that the proposed law’s interaction with the Equality Act 2010 was minimal.

But that was disputed by lawyers, who said a ruling by Lady Haldane’s Court of Session in mid-December made a significant difference in legal practice.

CONTINUE READING: Court of Session ruling on gender recognition could impact new law

Her ruling was that sex was “not limited to biological or congenital sex,” and therefore someone born male who receives a female GRC would be a woman as far as the law is concerned.

Ms Badenoch is now considering creating a legal distinction between people who were born women and those who became women.

In a letter to Baroness Falkner, Chair of the EHRC, the Minister asked for “considered advice on the merits or otherwise of amending the Act of 2010 on the current definition of ‘gender’, together with any associated or consequential enactments of the Advantages and disadvantages that such a change could entail for affected groups.”

In response, the peer said “society has evolved significantly over the last 13 years”.

“For example, language has evolved: the law refers to trans people as ‘transsexuals’ and sometimes uses the terms ‘gender’ and ‘gender’ interchangeably, with the requirement for employers to report ‘gender pay gap’ actually being a duty about pay gaps to report according to the protected characteristic sex.

“Furthermore, many trans people today would not describe themselves as transitioning from one gender to another, but rather as people living with a more fluid gender identity or unrelated to a binary gender identity at all.

“Their legal protections under the law may be unclear as, in practice, trans people are unlikely to be asked to prove their legal status except in unusual and unusual situations.”

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Baroness Falkner said defining “sex” as biological gender for the purposes of the Equality Act would bring “greater legal clarity” to a number of areas, including in relation to same-sex and separated-sex services.

In her letter, the watchdog boss writes: “Service providers are partially permitted to offer services for the sexes separately or only for one sex.

“For example, a hospital can operate several women-only wards. Currently, the starting point is that a trans woman with a GRC has access to a “women-only” offering.

“The service provider would have to exercise careful consideration to justify excluding all trans women.

“A biological definition of gender would make it easier to turn an all-women’s ward into a space for biological women.”

She also says the change could bar trans women with a GRC from women’s sport. Currently, organizers have to prove that the exclusion of trans women was necessary “in the interest of fairness or safety”.

But she notes that the change would be “ambiguous or potentially prejudicial in three areas,” including demands for equal pay and gender discrimination.

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Currently, a trans woman with a GRC can bring a direct gender discrimination claim as a woman. A trans man with GRC couldn’t do that. The proposed biological definition would reverse this situation.

The effect would be that the right would be transferred from some trans women to some trans men, the EHRC warns.

Baroness Falkner tells the Minister: “All things considered, we believe that the redefinition of ‘gender’ in EqA to biological sex would bring rationalisation, simplification, clarity and/or risk reduction for maternity services, other service providers and users, gay and lesbian associations , sports organizers and employers. It therefore deserves further consideration.”