Legislative Definition of Sex

Jess Phillips Excerpts

Monday 12th June 2023 Westminster Hall

[Jess Phillips (Birmingham, Yardley) (Lab)]

The status quo is not working. People who are speaking in the debate probably feel anxious about doing so, and that is not a status quo that I recognise—for those of us on either side, if we have to have sides.

Sex and gender are different. I have never met a trans person who denied that over the years of having robust debate with them. In my life, the discrimination I have suffered at the hands of establishments, rather than just everyday sexism, has always been exclusively because of my biology. The obvious examples I could give are related to pregnancy. I was told not to bother to turn up for interviews because of pregnancy scan appointments, and that I was too young to decide whether I wanted to be sterilised at the age of 28, whereas my husband, just three years older than me, was allowed to make that decision without anyone batting an eyelid. I had to get two doctors to sign a thing to say that I could have an abortion. My biology really matters to me, and I have been treated poorly because of it. However, after making that point, I stress that my remarks will be about the issue of single-sex spaces and the safety of women. I am probably alone in this room as being somebody who has run single-sex spaces and used the part of the Equality Act that we are here to debate.

We all know that men’s violence against women and girls happens to women. Of course violence happens to men and, frankly, if someone needs services because they are a victim of domestic or sexual violence, I do not care which category they fall into—they are 100% entitled to expect access to those services. But the Equality Act has to allow for the fact that we need different kinds of services for different people’s needs, understandably. The Equality Act is a carefully balanced piece of legislation that recognises that women and men—let us be honest, it is less men—need protection from sex discrimination. As part of that, women need to be able to have separate services, associations, charities and sports.

The majority of victims of domestic violence are women, and they are much more likely to be seriously hurt or killed. We must be really careful to protect our intricate and finely balanced services for women. I am already seeing again and again that specialist women’s services are being decommissioned in favour of generic support services that have an all-or-nothing approach. This has almost nothing to do with trans people initially; it is entirely to do with the fact that they are expected to support men’s services as well. Services are being decommissioned, and there are situations where perpetrator and victim are in the same service. That is happening across the country. It is utterly devastating, and the Government should be looking at commissioning women-only spaces in the Procurement Bill, which we are debating tomorrow. I look forward to hearing everybody who stands up and fights for women-only services today saying the same thing and that they do not want the free hand of the market to decide. They should say that they want specialist women-only services, because the Government refused to put the word “woman” in the Domestic Abuse Bill and the Online Safety Bill—it is funny how they are keen on it now. I shall be pushing everybody who speaks in this debate to vote on that basis tomorrow.

Organisations are afraid of not getting funding and of authorities thinking that they have to have an all-or-nothing approach. It is a reality that we are already seeing. Part of the problem is the confusion and fear about the law. Believe me, it is our role as parliamentarians to sort that out, no matter how hard it might be. It cannot be left to the courts, and it cannot be left to individual women’s services to muddle through and fight legal battles. Believe me when I say this happens, because it happened to my organisation when we refused to interview a man for a job. These are small organisations with very little in the way of support.

The public service equality duty is one of the most important parts of the Equality Act, and it requires public service providers to consider the needs of different groups. When I was a commissioner of services on Birmingham City Council, I insisted on the commissioning of domestic abuse services for LGBT victims, and on having specialist services for south Asian women where I live. I think we should have specialist services for disabled people, because they have specific needs. At the moment, I feel that we are leaving some smaller organisations in a difficult situation. Along with Women’s Aid nationally, I believe that we should be able to provide sex-only services and that other services must be available.

--- Later in debate ---

[Lloyd Russell-Moyle]

I appreciate that, and coming from a biologist that is important to note. People are complex. That is why flexibility in the current law is important. By defining things too much, what we suddenly do is assume that everyone lives in these easy, binary boxes. The current principle of the law, as my hon. Friends have mentioned previously, is that general and specific discrimination should not happen, but there are a number of exceptions for people with protected characteristics where discrimination can happen to provide specific spaces. We know that this can be on sex, race, disability and on gender reassignment.

However, the ability to have flexibility on one’s determination, such as in an organisation or on a specific place-by-place basis, is important. Survivors’ Network in my constituency, the predominant organisation supporting survivors of abuse, has for over 30 years decided to take a trans-inclusive approach to how it treats women’s spaces. That has been done through working out what the local need is for the service provision. The majority of providers in Britain choose to draw the line on biological sex. Both are legal. Because of the flexibility in the law, both can be determined.

What would happen if we then made a strict rule that the discrimination could only happen according to biological sex? Survivors’ Network would be barred from the flexibility that was dreadfully important in providing its inclusive service in our city. Moreover, we would have a legal provision that would prevent a trans man going to use male changing room facilities. I believe that in many respects we should try to find accommodation. A lovely new swimming pool has opened up in my constituency. It has fantastic changing facilities, with all individualised cubicles and individualised facilities. Gender is not an issue.

[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 ---

[Maria Caulfield]

Absolutely. For most people, their sex in law is the same as their biological sex. It is different where a transgender person has legally changed their sex to their acquired gender on their birth certificate by obtaining a gender recognition certificate. If “sex” meant someone’s sex in law, references to a woman in the Equality Act would include a trans woman with a gender recognition certificate but not a trans woman without a gender recognition certificate. That said, the Equality Act protection applies on the basis of perceived characteristic as well as actual characteristics, so a trans woman who passes as a woman can claim protection from discrimination on that basis. The debate today is about whether that basis of sex, based on law rather than on biology, needs changing to ensure that the rights of biological women are also protected. That is the crux of the matter that we have been debating today.

It is in that spirit that the Minister for Women and Equalities, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), sought advice from the EHRC as the independent equality regulator for Great Britain. When seeking that advice, she set out that she is concerned that the Equality Act may not be sufficiently clear in the balance that it strikes between the interests of people with different protected characteristics. It is everyone’s best interests that we establish whether the law in its existing format is sufficiently clear, because not doing so, as we have heard today, could have very practical consequences. The continued debate on this matter inevitably creates additional considerations for organisations and service providers to navigate, potentially preventing them from carrying out their functions or indeed from complying with the responsibility for equality.

The Prime Minister has also publicly given his views on this issue. In April he said:

“We should always have compassion and understanding…for those who are thinking about…their gender. But when comes to these issues of protecting women's rights, women's spaces, I think the issue of biological sex is fundamentally important when we think about those questions”.

That is why, when it comes to women’s health, sports or spaces, we need to make sure that we are protecting those rights.

[Jess Phillips]

It is interesting to hear the words from the very top of Government. I wonder if the Minister will be joining us in the Lobbies during the Victims and Prisoners Bill to ensure that specialist women’s services are defined in law and are protected in commissioning at a local level, where currently they are being let go.

[Maria Caulfield]

I know that the hon. Lady campaigns passionately on those issues from her experience of working in the sector. As a Government, we have done a huge amount for women in the space of domestic violence and abuse.

The Equality and Human Rights Commission has published its considered response to my right hon. Friend the Member for Saffron Walden, stating that on balance it believes that redefining sex in the Equality Act to mean biological sex would

“create rationalisations, simplifications, clarity and/or reduction in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers. It therefore merits further consideration.”

It has, as the shadow Minister, the hon. Member for Oxford East (Anneliese Dodds) said, said that it could cause some ambiguity as well. That is why it is important that we consider, both in policy terms and in legal terms, the potential implications of this change before we take any further decisions.

The Government have taken that advice and are considering the next steps at the moment.