Legislative Definition of Sex

Joanna Cherry Excerpts

Monday 12th June 2023 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is pleasure to serve under your chairpersonship, Mrs Cummins. I am supporting the prayer of the first petition, which is about restoring clarity to the law by specifying that the terms “sex”, “male”, “female”, “man” and “woman” in the Equality Act refer to biological sex and not sex as modified by a gender recognition certificate. My constituency of Edinburgh South West was one of the five constituencies with the highest number of signatories on that petition. The other four were the remaining four Edinburgh constituencies, which indicates the level of concern in Scotland’s capital city about the lack of clarity in the law as it stands, particularly in the light of the debate about self-identification in Scotland.

Given that I have only five minutes, I am going to concentrate on one topic. The petition that I support is not about changing the Equality Act, but about clarifying the Act. The second petition wants to leave the law muddled, and that is in nobody’s interests. The Equality Act attempted to strike reasonable balances between the rights of people with nine different protected characteristics, including sex, sexual orientation and gender reassignment. The protected characteristic of gender reassignment is widely drawn—and rightly so. It is rightly not confined to those who have undergone medical treatment or those who have a GRC. All transgender people are protected against discrimination on the grounds of gender reassignment. That is right, and there is no intention to remove that protection. I would not support any petition that did that.

There is a need for the law to be clarified. That is shown by two recent court cases in Scotland that have gone in opposite directions. The first, which was a decision of the Scottish appeal court, found that the provisions in favour of women by definition exclude those who are biologically male. Another decision of a lower court found that sex is not limited to biological or birth sex, but includes those in possession of a gender recognition certificate. The second decision is not binding on any of the law courts, and is under appeal at the moment. I do not see, however, why women should have to crowdfund to clarify the law that protects them when the Government can use the power built into the Gender Recognition Act by section 23 to resolve the issue and protect everyone’s rights.

Before I go any further, I refer Members to my entry in the Register of Members’ Interests. I am on the advisory group of Sex Matters. I do believe that sex matters, and many people agree with me. The Equality and Human Rights Commission agrees with me. The consultation for its strategic plan revealed that out of all protected characteristics, sex was important to the highest proportion of respondents.

Interestingly, last week when the Scottish Government’s independent “Violence Against Women and Girls: Strategic Review of Funding and Commissioning of Services” was published, it recommended that single-sex provision should remain as part of a range of services. One of its interlocutors said

“it is possible to be pro-woman and not anti-anyone else”.

In the short time I have, I want to focus on the right of lesbians and gay men to be same-sex and not same-gender identity attracted, and on our right to freedom of association. The protected characteristic of sexual orientation is contingent on the definition of sex as meaning biological sex. Lesbians, gay men and bisexual people all experience same-sex attraction—that is, attraction based on biological sex, not gender identity. As a lesbian, I think I can speak with some authority on this issue. Gender identity is not relevant to sexual attraction.

In recent years, Stonewall has quietly modified its definition of homosexuality to centre around gender identity and not sex. That was done without the permission of many gay people across the UK. Now that it explicitly includes cross-dressers within the definition of transgender, this means that many males now self-define as lesbians. Under this climate, it is impossible for lesbians to meet and gather openly without men wishing to join us or disrupt our events. In the words of Anne Lister, lesbians

“love and only love the fairer sex”.

It is unacceptable that we should be forced to include men in our groups and our dating pool. Indeed, it is outright homophobia, as lesbians’ sexual orientation is exclusive of males, as it is based on biological sex. I spoke about this during the debate in LGBT History Month and said what a problem this is for lesbians. I quoted my constituent Sally Wainwright, who wrote at length about this in The Times.

I want to say something to hon. Members who will perhaps be influenced by the Equality Network’s briefing in support of the second petition. In Scotland, the Equality Network has lobbied Scottish parliamentarians for self-identification of sex, saying that it has nothing to do with the Equality Act. However, today it is lobbying Members of this Parliament for a position that would annihilate the ability of women to have any clubs or associations that cannot exclude all male people. The Equality Network has in the past lobbied this Parliament to remove the very exemptions in the Equality Act upon which it is relying today.

Members should be aware that while the Equality Network may have a grand, inclusive-sounding name, on this issue it advocates a position based on an extreme interpretation of gender identity theory and not in the interest of same-sex-attracted women like me and my constituent Sally, or indeed women full stop. As my friend Allison Bailey has said, the rights of lesbians are not contingent on us accepting gender identity theory.

It is time that lesbians and the protected characteristic of sexual orientation regained the voice they once had in this Parliament. I am proud to be that voice. I would like to thank the organisations LGB Alliance, Lesbian Labour, the Lesbian Project, and the Women’s Rights Network for supporting me to be that voice. I support the first petition.

[Several hon. Members rose—]

--- Later in debate ---

[Dame Angela Eagle (Wallasey) (Lab)]

It is important that we try to detoxify this debate. I do not think the last contribution did so at all. In fact, it was deliberately provocative. I do not recognise anywhere in the Equality Act that there is a mandate on anyone’s dating pool and who should be in it. If people are worried about the law saying who they can date, they are not across the UK legislative system, which has no laws on who they can fancy and who should be in their dating pool. They can trawl wide or narrow across all—

[Joanna Cherry]

Will the hon. Lady give way?

[Dame Angela Eagle]

No, I will not give way. I have only four minutes. Some Members are putting together things that are deliberately provocative.

I rise to speak in favour of e-petition 627984, which asks the Government to confirm that the Equality Act’s current definition of sex should remain unchanged. I believe that the move to redefine sex as purely biological rather than legal would reduce rather than enhance current protections and create incoherence in the legislation. Paradoxically—perhaps even deliberately—the change would mandate exclusion and discrimination against all trans people, while worsening protections for women and girls. It would practically disapply important parts of the Gender Recognition Act and be in breach of our international human rights obligations. It would take away rights that have been enjoyed for almost 20 years by the small minority of our population who are trans.

Some 7,000 people have a gender recognition certificate. That is who we are afraid of in all this. A change to the Equality Act’s definition of sex to biological sex would have a huge effect on all trans people by effectively mandating their exclusion from public spaces unless they use facilities in their so-called birth gender, which would be humiliating and damaging to them. It would lead to the policing of women’s spaces, which would problematise non-gender-conforming women and girls who are not trans. That is happening now with all the hostility.

The hysterical media coverage that has accompanied this deliberately provoked war on woke has already led to increased policing in public toilets and harassment of non-gender-conforming women by those questioning their right to be there. I have spent my whole political life and my entire time in Parliament working to create greater equality for all and to reduce bigotry and prejudice, and I have always been a committed feminist. The safety of women and the opening up of economic opportunities to them on an equal basis to that for men has always been one of my priorities in politics.

I am also a lesbian. I was only the second out lesbian ever to sit in this place, and the first ever out lesbian Government Minister, so I have had some experience of bigotry, prejudice, misogyny and homophobia—and I recognise a politically induced moral panic when I see one. I also recognise a discredited Government unleashing a culture war for their own divisive ends when I see it. Those seeking to weaponise anti-trans fear for their own purposes have other issues in their sights: principally, inclusive sex education and women’s abortion rights, as we have seen in the USA, where over 400 anti-LGBTQ+ pieces of legislation have been introduced in state legislatures already this year.

The attack on trans people’s rights to exist and to live with respect and dignity in an accepting society is designed as a wedge issue that will open up the others. It is a gateway to wider homophobia, as the steady rise in hostility to LGBTQ+ people in the street attests to. I was around when it happened before in the 1980s with the enactment of section 28, which sought successfully to scapegoat LGBT+ young people and drive them into hiding. It caused untold misery for narrow political ends, wrecking the lives of LGBT+ people for generations. We should not be contemplating doing it again.

The Equality Act is an all-encompassing piece of legislation. It was enacted to advance, consolidate and update the protections of equality law, and it is working very well, but it works by making a blanket presumption against discrimination and exclusion. It specifies some circumstances in which discrimination is lawful so long as the action taken is a proportionate means of achieving a legitimate aim. That is a very pragmatic way of deciding on a complex range of issues in each case. If we change the definition, it would upend the Act and mandate exclusion for trans people, which I think is inhumane and unacceptable.

--- Later in debate ---

[Andrew Lewer]

I will follow the example of the hon. Lady’s colleague, the hon. Member for Wallasey (Dame Angela Eagle), and not give way.

I also want to talk about the consequences when there is a lack of clarity and about what happens when our laws mix up material, concrete, physical realities with words and claims about identity. The reason I want to do that is because the consequences can be horrific. When legislators make a mistake, it is ordinary people who suffer. Our laws have to be clear. In situations where sex matters, it is sex that matters.

People can identify however they like, so long as claims about their identity do not injure other people. But injuring other people is what is happening now, because our laws have drifted away from reality and in the process have got muddled. It is well past time to return to clarity and reality, and doing that means clarifying that when the Equality Act says “sex”, it really means sex. We are at a juncture where we have to draw a line in the sand of competing claims.

I ask my honourable colleagues to think of a stark but perfectly commonplace example of a situation where sex matters—that of a woman who is having a gynaecological procedure. Perhaps she is having a cervical smear test, or she needs an hysteroscopy, in which a camera is passed through her vagina and cervix into her uterus. For such procedures, she must take her clothes off from the waist down and be touched intimately. Many, many women are unwilling to go through such procedures except with female health workers. Some women have specific reasons; they are survivors of sexual assaults, or their religion requires them to avoid intimate contact with any man except their husband. Others are simply setting their own boundaries on the basis of what is comfortable for them, and their feelings about privacy and dignity are perfectly normal and a sound basis for them to grant or withhold consent. Here is the stark question in clear language: is a man who identifies as a woman a satisfactory person to provide care to a female patient who has stated that she is willing to undergo such a procedure only at the hands of another woman?

Here is what the NHS Confederation said in guidance sent around the country last week: despite the express wishes of the patient, that man is a suitable person to provide care to that woman. His feelings about his identity override the material reality of intimate contact with her body. They override her privacy, her dignity, her boundaries and her consent, and if she complains, she is transphobic and may be asked to leave the hospital or surgery. If her relatives speak up for her, they may be removed. All of that is dressed up in the language of gender identity. The patient has no rights to know the health worker’s gender identity. It is not the identity of this man, however, that the woman is concerned about; it is his sex.

The NHS Confederation is not an outlier. The British Medical Association, which regulates doctors, says that patients have no rights to be told a healthcare worker’s assigned sex at birth. However, sex is not assigned at birth: sex is observed at birth, as determined by conception. Moreover, if a patient has asked for a carer of the same sex as them, according to the BMA it is the comfort of the staff member that should be prioritised.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Andrew Lewer]

No—yes, sorry.

[Joanna Cherry]

Does the hon. Member agree that the guidance he is reading out is simply wrong in law, and that to force a woman to accept a male-bodied person to carry out her intimate care is a breach not just of the Equality Act but of that woman’s rights under articles 8 and 3 of the Human Rights Act 1998?

[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.

--- Later in debate ---

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

In the spirit of calm and cool debate, I will say clearly my view on this matter, just as those opposite have: trans men are men, trans women are women, and being non-binary is valid. I am proud to be Plymouth’s first out Member of Parliament; I am probably not Plymouth’s first gay Member of Parliament, but I am certainly the first one to proudly say so before they put themselves forward for election. That gives me a special responsibility to speak up for those people whose voices are not always heard in this place.

Changing the Equality Act is unnecessary, unworkable and unfair. When we talk about biological sex, we are talking about the sex assigned at birth. That means that there is a real complication and a potential assault on people with intrusive medical tests to look at their biological sex at birth rather than where they are today. As mentioned earlier, it also ignores intersex people, who make up a substantial portion of our population.

[Joanna Cherry]

Will the hon. Member give way?

[Luke Pollard]

I will carry on if I may. Single-sex services can and do exclude trans women at the moment, using the law as it stands. Changing the definition of sex is unnecessary to achieve that policy aim. Indeed, the majority of the examples used around the room in this debate so far are already covered by the Equality Act. I am worried that the debate and the direction of travel in which this can take us could lead to a roll-back of hard-won rights for the LGBT+ community and will potentially exclude more trans people from public spaces and allow discrimination to go unchallenged.

I want to hear more trans voices in the debate and I would like us to spend as much time talking about trans people’s access to healthcare as we spend talking about trans people’s rights to use a toilet. In the south-west at the moment, the waiting list to access trans healthcare is seven years—it is seven years. That is a disgraceful amount of time. I challenge all those people who spend so much time focusing on toilets to spend as much time focusing on healthcare and the delays in the system in order to achieve a fair place for us all. Let me say this clearly: the carefully crafted words that suggest that trans people accessing the toilets or changing rooms that they are legally allowed to access makes them a sexual predator are disgusting and wrong. What that does is contribute to a rise in hate against people. One of my friends, who describes herself as a butch lesbian, has been asked to leave toilets countless times. All she wants to do is go for a wee. But she has been asked to leave toilets countless times because of a rise in hate. She was born a girl; she is now a proud woman—a proud lesbian. But the rise in hate in the debate and around our country means that she worries about going to the toilet because of what other people may think of her. That is not right.

--- Later in debate ---

[Luke Pollard]

I will carry on if I may. We need to be very cautious: that is not to say that everyone in the debate here has made that case, but that is the direction of travel, especially when hate is bubbling in our environment.

The final thing I want to say is that for the trans and non-binary people watching this debate, it is important that one of us says, “I see them. I hear them. They should be loved and supported. They should be protected in law. And there is a way through to make sure that that can happen sensibly”—

[Joanna Cherry]

What about the women?

[Luke Pollard]

Well, there are trans and non-binary women and trans and non-binary men and trans and non-binary folks as well, and shockingly there are women and men in the LGBT wider community, so let us ensure that we are embracing inclusion in this, because the truth is that rising hate and discrimination makes all our lives worse, but in particular it makes the lived experience of trans and non-binary people much worse through attacks, discrimination and hate.

--- Later in debate ---

[Kirsty Blackman (Aberdeen North) (SNP)]

I thank the petitioners who brought the petitions forward and the hon. Member for Gower (Tonia Antoniazzi), who introduced them. I agree with the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard), who started off by saying that being non-binary or trans is valid. I will start off with that. I am going to offer a tiny bit of rebuttal in terms of the debate that has been had, but mostly I want to give voice to my trans constituents and the trans people who have contacted me about their concerns. I reject wholeheartedly any rhetoric that there has been in this room that has painted trans people as potential predators. There are potential predators, but to lump all trans people together as potential predators is to completely demonise a protected group.

I want to pick up on the fact that a number of Members have used the phrase “ordinary people”, when they mean “non-trans people”. There are an awful lot of people in my constituency who would consider themselves to be entirely ordinary, and who also happen to be trans. They are also extraordinary in their own ways, I am sure, but “ordinary people” is an exclusionary phrase when it is used as it has been by some Members in this debate.

Before I move on to discuss what my constituents have said, I want to say that I will be incredibly annoyed if I get a whole load of abuse on social media after this debate suggesting that I do not know what I am talking about because I am a straight woman, because it is entirely up to me what my sexual orientation is. For people to continually call me “straight” on social media is immensely frustrating, and I wish that it would stop.

We have talked about biological sex a number of times, but not one person has been able to explain what it is. The hon. Member for Stoke-on-Trent North (Jonathan Gullis) gave a good stab at it, talking about XX and XY chromosomes. I have no idea what my chromosomes are. I assume that they are probably XY, but I do not know—I have not got a clue what they are. I have a fair idea of what my genitals look like and how they compare with how other people’s look, but if we are talking about biological sex there needs to be a definition that everybody in this room can agree with. Nobody has been able to provide such a definition.

We continue to fail trans people, and we continue to fail women. Legislators continue to fail both groups, who are considered and treated as somewhat lesser in society. That is the case. We are a room of cis people debating trans people once again, and hatred and bile causes further risk for trans people. What will the impact be on trans people?

[Joanna Cherry]

Will my hon. Friend give way?

[Kirsty Blackman]

No.

We already have a situation where people are gatekept for going to the toilet. We already have a situation where people are attacked for the way they choose to present themselves.

I have constituents who came to me separately in relation to this issue. One of them said, “I’m not a danger. I just want to get on with my life and be able to go to the loo when I’m shopping.” Surely that is something we should want for everybody. Everybody should feel comfortable and able to access services. People should not have their two teenage daughters told that they cannot go into a loo because they have short hair and wear trousers rather than skirts, as happened to one of my friends. If we have a situation where people can tell what someone’s biological sex is, clearly they are gatekeeping the wrong people. Why are they continuing to do that if biological sex is so completely obvious to everyone?

Another trans person came to me. They were not the first to come to me with concerns of this nature. I will paraphrase what they said. When they heard about biological sex being included in the Equality Act and this change being made, they said, “What hope is left? Should I just kill myself now and be done with it?”

They will not rest until trans people are excluded from public life. This is what is happening as a result of this dog-whistle politics to try to demonise my constituents, who just want to get on with their lives, live in peace and go shopping in peace.

--- Later in debate ---

[Kirsten Oswald (East Renfrewshire) (SNP)]

It is a pleasure to serve under your chairship, Sir George. I thank the petitioners, the Petitions Committee and the hon. Member for Gower (Tonia Antoniazzi), who opened the debate on the Committee’s behalf. I am grateful to constituents and organisations who have been in touch with me.

I would like to make a couple of points to begin with. First, the tone of the debate has been mixed—that is the best way that I can describe it. Some of the language was not what I would consider measured. The hon. Member for Wallasey (Dame Angela Eagle) characterised some of it as “unedifying”, and that is true. Unfortunately, all too often, the tone of conversation about these issues is unedifying. In my experience, that is a problem. The people who lose out most because of that are not us, although I think it was the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) who pointed out that we will all have braced ourselves before standing up to speak today. The people most affected will be those directly impacted by the issue, but the change that is being sought is not likely to improve their life. As we have probably demonstrated quite effectively today, confusion would be likely to increase, to the detriment of trans people—and, potentially, women.

Members have repeatedly said that they are in favour not of changing the law, but of simply clarifying it, but it is a change that they are looking for. They are entitled to look for that change; I do not have to agree with it, but they are absolutely entitled to look for it. I do not know why that is the narrative. If they want to change the law, they should absolutely say that.

I am a middle-aged feminist woman, and increasingly a crabbit one, because I am fed up with the fact that women all too often still do not have fair treatment, or the rights that we absolutely should have. So let us hear much more about women’s rights. Let us hear about our rights in relation to buffer zones, and our reproductive rights—that is very topical today. Let us hear about our rights at work. Where is that employment Bill, which could have helped women so much? I could go on. Obviously this debate is not in that category, but the thing is that my rights are not diminished by someone else having their rights upheld. What endangers women is predatory and violent men. To be clear, the SNP’s support for trans rights does not conflict with our continued strong commitment to upholding rights and protections for women and girls under the Equality Act.

[Joanna Cherry]

Will my hon. Friend give way?

[Kirsten Oswald]

I am not going to give way to my hon. and learned Friend or anyone else. I have not intervened on anyone and for that reason, though I am grateful to her, I will continue.

I grew up and went to school in the 1980s. As I have said before in this Chamber, I thought that there were no LGBT pupils in my large secondary school. Obviously, I now know that that is absolute nonsense. It turned out that a number of my very close friends were LGBT, but I did not know that. Nobody did, because they did not feel safe to make their identity known because of the horrifically hostile environment at the time, with the section 28 debate and all. My real fear is that the current conversation about trans rights, including this debate—although maybe we should not call it a debate; nobody’s identity should be up for debate—is very similar in tone, and that is really damaging.

We have to be clear that trans people continue to suffer poorer outcomes. That needs to change, and the suggested amendment to the Equality Act would not change it in a positive way. I also point out that the Scottish Government need to be fully and formally consulted on any proposed material changes, including changes to the current definition of sex. Scotland’s Cabinet Secretary for Justice has written to the EHRC to seek clarification on that.

The reality is that recent communication on amending the definition of sex to biological sex represents a shift in direction by the EHRC, and that shift does not appear to have been made on the basis of meaningful evidence or meaningful consultation.

[Joanna Cherry]

Will my hon. Friend give way on that point?

[Kirsten Oswald]

I am not going to give way.

The heat in this debate has appeared only quite recently. The polarisation I see taking hold here resonates with some of the culture war we see in the USA, where a very damaging narrative is taking hold that is imperilling the rights of women and of trans people in a very frightening way.

We have heard that there are a range of practical issues if this is the direction of travel, including confusion and a lack of clarity on basic things such as where you go to the loo. Obviously, people have been going to the loo without any issue for many years. Your appearance might suggest that you should go to the ladies, but what I am hearing today is that maybe you shouldn’t—how do you deal with that? That is actually rather a thorny issue and practically quite challenging for people. Unless you are going to accept huge breaches of people’s privacy, there is a significant unanswered question here.

The hon. Member for Oxford West and Abingdon (Layla Moran) correctly raised the issue of intersex people. It is important to point out that biological sex consists of a wide range of characteristics. In many cases, people do not possess the sex characteristics that are typically associated with their sex. For instance, a large proportion of adult women do not ovulate. I am one of those women. I hear these debates and I do wonder. Of course, we have heard about intersex characteristics that do not neatly align with binary categories.

There is a significant amount of work that we need to do here. We need to consider the work of organisations such as Engender, which is Scotland’s feminist policy and advocacy organisation. It points to evidence indicating that attempts to amend the Equality Act to limit the definition of sex as a protected characteristic to biological sex risk regression in protections for all women, as well as disproportionate and harmful exclusion of trans people. It makes reference to a paper called “On the Basis of Sex”, which was written by Nicole Busby, professor of human rights, equality and justice at the University of Glasgow. It commissioned that work, which clearly concludes that the Equality Act’s use of non-restrictive definitions is a strength and, as we have heard already, a deliberate approach. It recognises that

“discrimination on the grounds of sex often arises in relation to…socially constructed gender roles rather than biological difference”.

Their concern, which I share, is that there is no legal precedent for the definition of biological sex, as my hon. Friend the Member for Aberdeen North (Kirsty Blackman) noted. That means that there is not a way of looking at how we support women’s rights to privacy, for instance. That kind of change could have regressive consequences: it could actually entrench gender stereotypes and biological determinism for women. These are things that the feminist movement has fought long and hard against. Those are the kinds of concerns, along with the utterly shameful disdain of the UK Government for Scottish democracy that was aired recently when they rode roughshod over the cross-party will of the Scottish Parliament on gender recognition. Transgender people should not be expected to be treated as some kind of convenient political football for constitutional wrangling. They should not expect to have their identities weaponised in the culture wars, which are causing so much harm in the USA. Please, let us not have that here.

[Joanna Cherry]

Will my hon. Friend give way?

[Kirsten Oswald]

I am trying to continue speaking despite interruptions from behind me.

We should accept that all of us present may disagree—we probably all have various different views—but let us imagine that we are all here with good will and not trying to do others down. We are here because we are saying what we believe to be the case. We started the debate with Mrs Cummins, who was previously in the Chair, telling us to be moderate, sensitive and respectful in our language, and that is how we should aim to continue.

To conclude, I point out that we are talking about a small group of the most vulnerable people. The hon. Member for Darlington (Peter Gibson) pointed that out very eloquently. They are the very people who should be able to expect their Governments to find ways to make life easier and support their rights. Our new First Minister, Humza Yousaf, set that out very well:

“I am firmly committed to equality for everybody, because your rights are my rights regardless of who you are. My starting point is that I’ve been a minority in this country for my whole life. I have understood that you have to fight for your rights but my rights don’t exist in a vacuum or in isolation. They only exist because other people’s rights exist too.”

All other rights matter. The suggestion that this change would improve our rights is simply not the case.

--- Later in debate ---

[Maria Caulfield]

I thank my hon. Friend for making that point. I spoke to my hon. Friend the Member for Bridgend (Dr Wallis) before this debate, because he had some genuine concerns that he wanted to raise, and I am very happy to follow up after the debate to make sure that we can talk through any concerns that he did not get a chance to raise.

The Equality Act 2010 is at the heart of today’s debate. As with any other piece of legislation, over time we need to reflect on its effectiveness and purpose. It is only right—indeed, it is our duty as parliamentarians—to ensure that we constantly review legislation, to keep assessing whether the statute book is still able to provide a framework that is relevant and responsive to the issues that we face today. Put bluntly, our law has to be functional and able to take into account everyday experiences and respond to modern challenges. Failing to guarantee that would be to do a disservice to our constituents and those who rely on the law to carry out their functions and safeguard their basic rights. With legislation, it is important to note that work on the ground and in practice means recognising that there are instances where protections interact with—and are at times in tension with—the rights of others, giving rise to discussion and debate about how to ensure that the rights of all involved are best protected.

Currently, references to sex in the Equality Act relate to a person being either a man or a woman. A woman is defined as

“a female of any age”,

and a man is defined as

“a male of any age”.

Reference to sex has generally been considered under the Equality Act to refer to whether a person is a man or woman in law, rather than to their biological sex or sex at birth.

[Joanna Cherry]

Can I just be very clear that those of us who support the first petition are not seeking to define sex in law for the first time? Sex has long been recognised in the common law. I refer to the Minister to the House of Lords definition in Bellinger v. Bellinger. I am sure that the Minister will agree that we are not seeking to define it for the first time. Everyone knows what a man is and what a woman is.

[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.

--- Later in debate ---

[Maria Caulfield]

As we have heard, there are many views on this issue. That is why it is important that we take the time to properly consider the policy around it and take in the legal considerations, too. There are clearly cases where people are struggling to make practical decisions on a day-by-day basis with the Act as it stands. However, we do not want to create additional unforeseen problems by changing or clarifying the Equality Act.

[Joanna Cherry]

The Minister is being very generous with interventions. Is she aware that the United Nations special rapporteur on sexual orientation and gender identity does not speak for all people who have same-sex orientation? He certainly does not speak for me. Is she equally aware that the United Nations special rapporteur on violence against women and girls, Reem Alsalem, takes the opposite view and is very much focused on the protection of women?

[Maria Caulfield]

The hon. and learned Lady highlights the diversity of views in this space. That is why it is so important to take proper consideration and time before deciding our next steps. I know that Members will be eager to hear updates and reassurances, as well as the timeline for our next steps. However, the issues under discussion today are complex, and we need to proceed carefully and respectfully. As we have heard, a wide number of people will be affected by any change. I hope that Members will agree that it is only right and proper that we take timely consideration of the advice that we have been given before coming to any conclusions.

I will touch on some of the issues that were raised in the debate, particularly around single-sex spaces. I would like to reassure Members that the Government are committed to maintaining the safeguards that allow organisations to provide single-sex services. We recognise that being able to operate spaces reserved for women and girls is an important principle, and—to answer the question from the hon. Member for Oxford East—should be maintained.

As many here will already know, under the Equality Act, providers are already able to restrict the use of spaces on the basis of sex and/or gender reassignment where justified. The Act provides protection against discrimination, harassment and victimisation across a number of grounds, including sex. We are committed to upholding Britain’s long-standing record of protecting the rights of individuals against unlawful discrimination.

The EHRC has published guidance on the existing legislation, which provides much-needed clarity to those offering single-sex spaces. It does not change the legal position or the law. As that guidance makes clear, it is currently entirely acceptable for providers of single-sex services to take account of the biological sex of their service users. Where it is a proportionate means of achieving a legitimate aim, the Equality Act is also clear that service providers can exclude, modify or limit access for transgender people even when they have a gender recognition certificate.

When women are asked, privacy and dignity are high on the list of reasons they give for wanting such spaces. That is because they will be in a state of undress or in very vulnerable situations. Those spaces are also frequently relied upon during some of the most harrowing and distressing times that women and girls can experience. Their ability to feel safe and secure should always be of paramount importance, and we understand that creating environments where they are protected from further trauma is a crucial part of enabling them to heal.

My hon. Friend the Member for Bridgend is not now in the Chamber, but I hope he will not mind me saying that single-sex spaces are one of his concerns. We heard a bit about it in today’s debate. We have to be careful when making the assumption that one of the reasons that women want single-sex spaces is because they feel that trans people are of a predatory nature. That is not the case. The vast majority of women just want to be with other women. We need to be mindful of our language and tone, so that the trans community do not feel that they are being given labels or are being targeted in an inappropriate way. My hon. Friend made that point to me ahead of the debate.

The EHRC’s guidance is helpful for those wishing to navigate such scenarios with the care and delicacy needed. I encourage all Members to review it, and if there are queries from constituents, or organisations within constituencies, to refer people to the guidance, because it is helpful in practical terms.

There were a number of Members who touched on the issue of gender recognition and the long waiting list that many people face when going through the process of changing their legal sex. There are processes in place with the right checks and balances to allow those who wish to legally change their gender to do so. We have taken action to simplify the process following the consultation on the Gender Recognition Act. We have modernised the way that individuals can apply for a gender recognition certificate by moving the process online and making it cost significantly less.

In addition, we are opening up more gender identity services for adults. A new pilot gender clinic was opened in Chelsea and Westminster in 2021. We have since established four new community-based clinics in Greater Manchester, Cheshire, Merseyside, London and the east of England, with a fifth opening in Sussex later this year. All those clinics offer a range of clinical interventions that are offered by conventional gender clinics. We are trying to make the process as easy and supportive as possibly by tackling some of the practical barriers that those in the trans community face when they want to transition in a clinical way.

I thank Members again for their contributions. There are strong feelings on all sides, as shown by the numbers of people who signed both petitions, and by the Members of Parliament who fairly represented both sides of the argument today. The Government recognise the importance of biological sex, and we have taken it seriously enough to ask for advice from the Equality and Human Rights Commission. We will come back to this place once we have considered in detail the policy and the legal implications of changing or updating the Equality Act. I thank everyone for taking part in the debate, contributing to the discussion and affording the issue the respect it warrants.