Legislative Definition of Sex

George Howarth Excerpts

Monday 12th June 2023 Westminster Hall

[Andrew Lewer]

That is exactly right, and it is why this clarity is needed. Here is another quote from BMA guidance:

“A patient does not have a right to know if a healthcare worker has a gender different to the sex they were assigned at birth.”

In other words, the patient has no right to know whether the person treating them is the same sex as them. That is heartless beyond words. We are talking about a woman who may be worrying about serious illness and is feeling exposed and vulnerable. Professional bodies are instructing healthcare providers to gaslight her. They are saying that it is perfectly fine for a man to touch her unclothed private parts when she has refused that, because of how he identifies. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, it is more than heartless, it is illegal. If a man provides such care to a woman who says that she is only willing to receive it from another woman, it is a sexual assault.

Have we reached the point where medical associations are instructing care providers to sexually assault women in the name of inclusion? That is why it is essential that the meaning of sex in the Equality Act is made much clearer, in order to end this and save lives.

[Sir George Howarth (in the Chair)]

Order. The hon. Gentleman has exceeded the time limit. Can he give one line by way of a conclusion before I move to the next speaker?

[Andrew Lewer]

I have finished.

--- Later in debate ---

[Jess Phillips]

I have seen it come about that we now have non-gendered areas, and I have to say that I think there is a bit of a red herring. Lots and lots of women would still like to have a women’s changing area, but I have seen the solution to the issue being non-gendered areas.

[Sir George Howarth (in the Chair)]

Order. Before the hon. Gentleman resumes, there is a Division. We will suspend the sitting for 15 minutes.

--- Later in debate ---

On resuming—

[Sir George Howarth (in the Chair)]

Before Lloyd Russell-Moyle resumes, I should say that, because of the Divisions, the debate will now conclude by nine minutes past 8 and the wind-ups will begin no later than 7.39 pm. Could hon. Members bear that in mind?

[Lloyd Russell-Moyle]

I want the flexibility for these things to be locally determined—proportional means for legitimate ends. The current law works. Of course there will be examples that are wrong and need correcting, but that is why we need the Government to give greater guidelines. The problem is that the trans community do not have trust that those guidelines will be fair and balanced.

For me, the real issue—the injustice—is about the woman who will turn up tonight at Brighton, be told that there are no spaces in the refuge and be put into hostel accommodation with rapists down the corridor who have only just come out of prison. The real tragedy will be the young trans person tonight who cannot get access to mental health services. The real tragedy is 12 years of austerity and cuts from the Conservative Government, not some dog whistle about whether there should be clarity or not. There is. The law is clear. What we need are services.

--- Later in debate ---

[Caroline Ansell (Eastbourne) (Con)]

It is a pleasure to serve under your chairmanship, Sir George. It is rather ironic speaking so late in the debate because the point I wanted to make and the argument I wanted to win were made and won before the debate started, when your predecessor in the Chair counselled Members that there were two live court cases associated with this subject. My point is that we are allowing individuals to operate in this seeming legal grey space, rather than us direct in Parliament. Those individuals and organisations are forced to run the legal gauntlet case by case, isolated and alone, and sometimes at very great cost to their reputation, to their career and to their health.

In common with many colleagues here, I rise to support the petition to clarify—not change—the Equality Act. The hon. Member for Aberdeen North (Kirsty Blackman) seemingly endorsed that change when she said we are currently failing trans people and failing women. Change is an imperative, because we must be very clear with trans people what the law can and cannot do. Equally, we must safeguard the rights of women to those same-sex spaces.

It would be indefensible if Parliament, seeing the outworkings of this conflation and confusion, did not act. It is a highly relevant point that the lead petitioner, Maya Forstater, spent nearly two years and £100,000 just to determine that she was indeed covered in the Equality Act by the protected characteristic of belief, and her case was won. The judgment of the employment tribunal in 2021 made it clear that the law could only mean that a GRC changes a person’s sex for certain legal purposes; it could not force other people to change their belief, and therefore their perception, of that person’s sex. Yet individuals continue to face complaints and investigations in every corner of the land and in every sector for asserting the protections they have under the Act.

Just last week, a young woman with the pseudonym of Maria told her story to the press of being investigated and driven out of her employment at Oxfam simply for defending J. K. Rowling against being called transphobic. Closer to home, as a Sussex MP, I saw with horror how Professor Kathleen Stock was hounded from her post and chased off the university campus simply for saying the truth: that male people and female people are two different groups. A woman who remains anonymous under the name “Sarah Surviving” is suing Brighton’s rape crisis centre for discrimination because it refused to provide a women-only peer support group. I would hope that my near neighbour, the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle), would speak with equal passion in her defence too.

When we look at each of these legal cases, a commonality we see is not only that the women concerned have to put themselves on the line to try to clarify the law, but that the judges invariably say how poorly suited the subject matter is for determination by the courts, as compared with Parliament. They caveat their judgments by saying that they are not pronouncing on broad debates on trans rights and women’s rights. The confusion in terms and in rights and responsibilities is souring the cultures of businesses and charities alike as they wrestle with what is required of them. The EHRC has fallen out with itself over this challenge. The debate in society is increasingly toxic.

I started my own consideration of this complex and sensitive issue some months back, when I knocked on a door in Eastbourne. After a chat, a grandad shared with me his dismay and heartache. His grandson aged five had come home from school and said, “We were learning if we were in the wrong body.” That is of course a serious question to be answered, but what was really chilling was that he said he was too scared to speak up, so I promised him that I would. It is our duty to speak up, so I commend clarity in the Act.

[Sir George Howarth (in the Chair)]

Order. It is worth reminding Members that there is some concern about sub judice. When my co-Chair opened the debate, she stated that Mr Speaker has agreed to exercise the discretion given to the Chair in respect of the resolution on matters sub judice to allow reference to the cases, given the issues of national importance that are raised. I call Anna Firth.

[Anna Firth (Southend West) (Con)]

It is a pleasure to serve under your chairmanship, Sir George. I rise to support the first petition to make the Equality Act clear, but I want to use my short time this afternoon to focus on the importance of protecting single-sex spaces and services.

I might be going back to the beginning, but, after such a long debate, that is not a bad thing. I want to begin by saying that people who are transgender must be supported to play a full part in society and public life. They should not be harassed or discriminated against. We in this place must be very careful not to stoke hatred of any kind towards them or any other section of society.

However, this debate is not about trans people or, more formally, people with the protected characteristic of gender reassignment. Their rights remain, quite properly, protected and unchanged. The issue is whether the 6,000 or so trans people who have a gender recognition certificate count for the purposes of equality and sex discrimination law as members of their own sex or of the opposite sex. Clarifying the Equality Act as suggested would make it clear that having a gender recognition certificate does not give male people the right to compete in women’s sports, undress or shower with women and girls, or be employed in a job that involves intimate contact with women, such as the example so very well described by my hon. Friend the Member for Northampton South (Andrew Lewer), in hospitals or women’s prisons.

Families, women and children in Southend West want to know that when the sign on the door says or indicates female, that is not up for negotiation. The only people who should be in that space are biological women. Biological males or trans women or non-binary people should simply not be in those spaces.

Like the common law, legislation regarding equalities and sex discrimination has evolved over time and it can be very complicated, but what we are talking about this afternoon is a very simple clarification. When we talk about sex discrimination in the Equality Act, we are talking about biological sex—nothing more and nothing less. We know that it is important that the law is clarified because we know there are exceptions throughout the Equality Act that allow for single-sex services, including, as we have talked about, specialist services such as women’s refuges, women’s prisons, women’s health services, and also everyday services such as public toilets and showers at gyms.

As well as making it clear that where the Equality Act refers to sex, that means biological sex, we must also be clear that the definition of a woman is someone who was born female and the definition of a man is someone who was born male. Of course people should be able to express themselves, but the simple fact is that someone who was born male, if they gain a gender recognition certificate, is not the same as someone who was born female, and they should not be accessing as of right female-only spaces and services.

Quite simply, as has already been said, if the Equality Act is not clarified, it will be impossible for service providers to exclude a biological male with a gender recognition certificate from any female space or specialist service. “Case by case” simply does not work. Operating without clear rules simply shifts the responsibility to service providers to make very difficult decisions about who should have access to female-only spaces and services, and who should not. A simple search on the internet reveals the extent of the confusion that reigns. To give just one example, the NHS promises single-sex accommodation in hospitals, yet NHS England’s annex B policy tells hospitals to allow trans and non-binary people to choose whether they are housed with men or women.

The situation is simply not clear. It is said that sporting bodies set sex-based rules, so clarification is not needed. I would say the exact opposite: the law must be clear about sex if sporting bodies are to feel confident setting sex-based rules.

I see that I am about to run out of time. I end by saying that recently I was horrified by the story of the fight between the boxer Fallon Fox, who identifies as a trans woman, and Tamikka Brents. Fox hit Brents so hard that she suffered from a concussion and a fractured skull, and received seven staples to her head. Purely and simply, that was a man fighting a woman. I do not believe that that is right or fair, and I do not want to see that happening in this country.

[Sir George Howarth (in the Chair)]

I call the SNP spokesperson.

--- Later in debate ---

[Tonia Antoniazzi]

It is our privilege and responsibility to weigh up different groups’ rights, needs, interests and demands as we debate and amend the laws of this land. That is the bread and butter of the work of this House. I applaud all hon. Members—whatever their position on the substance of the two petitions—who have turned up to discuss them, and who have ignored the calls for no debate. We are doing our work, and this is a democracy.

The two petitions concern only the question of whether a GRC changes a person’s sex for the purposes of the Equality Act; they are not about gender self-ID. Also, the purpose of the GRC is nothing to do with what some speakers referred to as “intersex”. The question of whether GRCs change a person’s sex for the purposes of the Equality Act has nothing to do with those medical conditions, and people with those conditions have said many times that they do not want to be drawn into these discussions. They, and organisations that represent them, have said that these are complex medical conditions. There is no third sex or intermediary sex, and people with those variations on the sex development pathway are either male or female.

What has come across very strongly in arguments today is that one of the purposes of single-sex spaces is risk management. Speakers have made it clear that it is not about suggesting that all male people or all trans people are predators; it is just that single-sex spaces are an important risk management tool, given the overwhelming statistics in the patterns of male violence.

It has been an important debate for me to lead for the Petitions Committee, and to hear various views from across the House—some respectful, some less so. We are responsible for legislating, and we have to discuss issues. I wish no ill on anybody, whether they be trans, lesbian, gay or bisexual. This is important to me and to my trans community in my constituency, and it is important to all of us.

[Sir George Howarth (in the Chair)]

Before I put the Question, let me say that my co-Chair appealed to people at the start of the debate to deal with this sensitive issue in a respectful manner. Before she left, she pointed out to me that, during her time in the Chair, it had been dealt with in that way. I thank everybody, as others have, for the respectful and thoughtful way in which they have put their arguments during my time in the Chair. People feel strongly about this issue, but it is no reason to be abusive, and I do not think that people have been. Thank you for that.

Question put and agreed to.

Resolved,

That this House has considered e-petitions 623243 and 627984, relating to the definition of sex in the Equality Act 2010.