Legislative Definition of Sex

Judith Cummins Excerpts

Monday 12th June 2023 Westminster Hall

[Judith Cummins (in the Chair)]

Before I call the hon. Member for Gower (Tonia Antoniazzi) to open the debate, I wish to make a short statement about the sub judice resolution. I have been advised that petitions being debated indirectly relate to two ongoing legal cases in the Scottish courts. Those cases are ongoing and are therefore open to sub judice. Mr Speaker, however, has agreed to exercise the discretion given to the Chair in respect of the sub judice resolution to allow reference to the cases, given the issues of national importance that are raised. I also remind Members that this debate will be conducted with courtesy and respect.

[Tonia Antoniazzi (Gower) (Lab)]

I beg to move,

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

It is an honour to serve under your chairship, Mrs Cummins. I am pleased to open the debate on the petitions on behalf of the Petitions Committee. One petition calls on the Government to update the Equality Act 2010 to make the characteristic of sex refer to biological sex, and the other petition calls on the Government to commit to not amending the Act’s definition of sex.

Opinions about the relationship between biological sex, gender identity and the law divide organisations, political parties, and even family and friends. Many people have told me that this is something that they are afraid to speak of, and some say it should not be discussed at all. Others have told me of how they are relieved and happy that we are finally discussing it in Parliament.

[Tonia Antoniazzi]

When the hon. Member listens to my speech, I think she will understand the compassion with which I speak. She will also understand that we are in a difficult position: we are legislators, and where there is something that needs to be addressed, as there is in these two petitions, it is down to us to stand up and make that change and have the conversation. It goes with the job, I am afraid.

Members from all parts of the House can model the respectful, adult conversations that are needed across society. We can demonstrate, here at Westminster, that we can freely express and listen to different opinions. This is a set of issues on which views are held profoundly and with good intentions. The nature of this debate means that those views differ across the House, and even within our own respective parties.

I was in education for 20 years before coming to this place. My priority has always been the wellbeing of those in my care, be they adults or children. I am afraid that asking probing and difficult questions to get through issues and problems is in my nature. I will not be cowed when looking out for my constituents, be they lesbian, gay, bisexual or trans. The conversations that I get the most out of are the ones where I explore, learn and am able to disagree agreeably.

It is a mark of adult politics not to pretend that we are in perfect agreement on every issue, and Westminster Hall debates like this offer the opportunity for us to explore issues, free from the usual pressures of votes and the instructions of the Whips. This is a debate that will explore the difficult interrelationships that exist between rights, and it will mark the difficult lines between which individuals’ and collective rights are drawn. However, it is for the House to decide the way those rights are formed and how they are interpreted. We are holding this debate on behalf of individual people facing discrimination, and in support of service providers and public servants who have a deep commitment to reducing discrimination and to providing safe and welcoming environments. Our task is to make decisions on the boundary of rights and to take responsibility, rather than passing it on. We may draw different conclusions from historic debates on the legislation, but our responsibility is to make our decisions on what would be the right law to have now.

In order to prepare for the debate, the Committee Clerks arranged for me to meet the petitioners and organisations supporting these two petitions. I thank them all for their time and input. The House of Commons Library has also produced a debate pack that covers the complexity of the legal issues behind the two petitions. I am most grateful to everyone who has spoken to me, because there are two broad positions. Those who support the petition to update the Equality Act say that the law should be clear about the two sexes, and that it was never the intention of the Act to make it difficult or impossible to have sports that are for biological females only; to protect services that are for women, such as domestic violence refuges; to assure an elderly woman or a woman getting a smear test that, when she asks for a female carer or nurse, she has the right to be treated by a biological woman; to provide single-sex spaces where women are undressing and washing; for same-sex-attracted people to have opportunities to associate with each other; and for the public sector equality duty to consider the needs of women separately from those of trans women.

Kate Barker from the LGB Alliance and Julie Bindel and Tamara Burrows from the Lesbian Project, who support the clarification of the Equality Act, explained to me that the protected characteristic of sexual orientation is contingent on the definition of sex as biological, and that the Act did not intend to remove the rights of association for same-sex-attracted lesbians. I heard how, for the lesbians I met, biological sex is fundamental to understanding their rights as same-sex-attracted people, so the grey area that we have is creating ongoing problems for lesbians. If we do not say that “sex” in the Equality Act means biological sex, we may as well scrap the protection of sexual orientation. They said that the protected characteristic of gender reassignment exists. Trans people are able to hold their own separate groups under the protected characteristic and can also associate with lesbian groups already open to them; so the question posed was: why cannot lesbians organise lesbian-only spaces?

The Lesbian Project is an organisation that wants to research and study lesbian lives and survey lesbians. If trans women are included, it renders the research meaningless and pointless. This is not, I was told, about being anti-trans; it was about the bedrock of being a lesbian, and a lesbian is a female attracted to females. It was highlighted that there must be protections for trans people, but not at the expense of women’s rights. It is becoming a barrier to lesbians in coming out, which is a huge problem for them. The question for many is: should women be allowed female-only associations? Should it be easy and straightforward for women to be able to undress, shower and use a toilet in female-only spaces?

Those who want the Equality Act to stay as it is say that trans people are already using services for the opposite sex without concerns, regardless of whether they have a gender recognition certificate or not, and that not allowing them to do so would be harmful and detrimental to their human rights. It is therefore the responsibility of society and lawmakers to ensure that people are able to access opposite-sex facilities, services and sports. I would like to take this opportunity to thank Dr Finn McKay, Robin Moira White, Dr Paul Martin and Nancy Kelley for taking the time to speak to me and to explain the situation for that petition. Where this causes a problem is likely to be very rare, and a transgender person may be excluded on an individualised, case-by-case basis. Some of those arguing for no change to the Equality Act believe that trans women are women and trans men are men, and that therefore—

[Judith Cummins (in the Chair)]

Order.

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On resuming—

[Judith Cummins (in the Chair)]

The debate can now continue up to 7.55 pm.

[Tonia Antoniazzi]

Some of those arguing that there should be no change to the Equality Act 2010 believe that trans women are women and trans men are men, and therefore that the protected characteristic of sex includes those who identify as the opposite sex. Some also feel that it is an attack on trans people to think or express disagreement with this belief.

In support of this petition, Nancy Kelley from Stonewall said that she is proud of the Equality Act 2010, that it works really well as “legal sex”, and that it works well to operate trans-inclusive or not spaces, and emphasised how inclusion should be the norm. Defining legal sex as observed at birth would see exclusion rather than inclusion.

I have also had the opportunity to talk to barrister Robin Moira White, who explained to me how this amendment was a blunt instrument; in fact, it was called a sledgehammer that was being presented as a simple solution. Robin told me that, to move forward, there was no need to change the law, but that there was a need for less toxicity and also that this amendment did not consider the anomalous position of a pregnant trans man.

I also spoke to Dr Finn Mackay, who told me about the impact that this change in the law would have on gender non-conforming people. Finn said that she would like to see more case studies from the Equality and Human Rights Commission on single-sex spaces, and she agreed with the Government position and said that the current rhetoric is dangerous. We also need to have better public amenities that work for all people, with inclusion as the default.

Both petitions received over 100,000 signatures, and we will all have constituents who are passionately engaged on either side, as well as service providers that say they badly need clarity about the law, and others who say the current situation is okay for them. It is important that we are having this debate today.

As well as supporters of both petitions, I spoke to the EHRC, whose job it is to protect everyone’s rights and to explain the Equality Act. The EHRC said that the law can be hard to implement—and don’t we know it? Its letter to the Minister for Women and Equalities states:

“A change to the Equality Act 2010 so that the protected characteristic of ‘sex’ means biological sex could bring clarity in a number of areas but potential ambiguity in others.”

Both the Government and the Opposition welcomed the EHRC statement that the current situation merits further consideration and exploration of possible solutions. The EHRC said that

“there is a clear need to move the public debate on issues of sex and gender to a more informed and constructive basis.”

I was told—and I know—that this issue had been bubbling away for many years and was not anything new. In 2018, the Women and Equalities Committee asked the EHRC to create statutory guidance on single-sex spaces, which it published much later, in 2022. However, the guidance placed a large onus on service providers to exclude people who are legal women. It was when this escalated in 2018 that the UK Government and the Scottish Government started talking about proposals to reform the Gender Recognition Act 2004, which started the debate about self ID. They said that the landscape since the Equality Act had changed significantly. There are more gender identities—

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[Several hon. Members rose—]

[Judith Cummins (in the Chair)]

Order. I remind hon. Members that they should bob if they wish to be called. Also, those who wish to speak should have been present when the debate was opened.

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[Several hon. Members rose—]

[Judith Cummins (in the Chair)]

Order. I ask Members to limit their speeches to around five minutes so that everybody can get in.

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[Several hon. Members rose—]

[Judith Cummins (in the Chair)]

Order. Before I call Miriam Cates, I have to tell Members that will we have a time limit of five minutes.

[Miriam Cates (Penistone and Stocksbridge) (Con)]

When the Equality Act was passed in 2010, few doubted that Parliament’s intention was that sex should mean biological sex: either male or female, recorded at birth—an immutable characteristic. However, uncertainty has since arisen, specifically as to whether or not a person with a gender recognition certificate has legally changed their sex for the purposes of the Equality Act. Whatever the law actually says, the extent of the confusion is such that many people now believe that when someone expresses a desire to live as the opposite sex, that person then has a legal right to be treated as if they have changed sex.

This is not an academic argument. It has significant practical and safeguarding implications, as the outstanding work of Policy Exchange’s Biology Matters unit continues to reveal. Take the example of a tribunal brought against Sheffield Teaching Hospitals NHS Foundation Trust last year. A male catering employee known as V, who identified as a trans woman, was given permission to use female changing rooms. When female staff complained about being forced to undress with V—in particular, seeing him naked from the waist down—the issue was raised with V by a female manager. In response, V brought a harassment case against the trust and, unbelievably, won.

Instead of considering whether the manager acted reasonably in being concerned about the exposure of male genitals in the ladies’ changing room, the judge decided that V had been treated differently from another woman. The judge treated V as though his sex was female when the issue was the fact that his body was male. Of course, the women who complained about V were not discriminating against him because of his trans identity, but because he was male, and such discrimination is of course—

[Judith Cummins (in the Chair)]

Order. Can I check that this is a concluded case, please?

[Miriam Cates]

It is a concluded case.

The women were discriminating against him because he was male, and such discrimination is perfectly within the Equality Act if it is

“a proportionate means of achieving a legitimate aim”,

which in this case was to protect the integrity of single-sex spaces.

I have nothing but compassion for people whose biological sex is a source of distress; they should of course receive the best evidence-based treatments for gender dysphoria. But while a small number of people rightly have the protected characteristic of gender reassignment, everyone, including trans people, has the protected characteristic of sex—male or female. Where those protected characteristics collide, we must ensure that everyone is protected according to their sex and that proportionate accommodations are made to assist those who do not wish to use the facilities of their sex.

We must clarify the Equality Act to make it clear that sex means biological sex and to ensure that the providers of single-sex services and facilities understand and protect the single-sex nature of the provisions. It is extraordinary that in 2023—a time of unprecedented knowledge—we are arguing about the definition of something that has been known since the dawn of time. The most contentious question of our day has famously become “What is a woman?”—a question that no previous society has felt the need to answer.

Despite the semantic acrobatics employed by some to dodge the question, we all know, instinctively and intrinsically, what a woman is. The sex binary—the biological state of being either male or female—evolved hundreds of millions years ago, before we humans walked the earth. Being able to tell the difference between a man and a woman is not a matter of acquired knowledge. It is as instinctive as being able to tell up from down. Indeed, our survival as a species depends on it; if we want to reproduce, and to protect ourselves and our children, we had better know the difference between a man and a woman.

Men and women are different physically, psychologically, sexually and socially. All civilisations are built on an understanding of these differences, creating structures, rules and boundaries to protect women and children from male violence and to preserve the dignity of both sexes. There is nothing more destabilising to society than to dismantle the legal, social and cultural guardrails that protect women and children by pretending that males become females and vice versa, and allowing that to creep into our law.

While academic elites cave in to aggressive and misogynistic trans activism, ordinary women are frightened to go to hospital, ordinary men fear for the safety of their daughters in public toilets, ordinary children are subjected to a psychological experiment in which they are told they can choose their gender, and ordinary toddlers are used to satisfy the sexual fetish of adult men dressed as eroticised women. Understanding the difference between male and female underpins society, safety and security. We must clarify the Equality Act, and give ordinary people the certainty that our laws can be trusted to protect women and children and that sex means sex.

[Hannah Bardell (Livingston) (SNP)]

On a point of order, Mrs Cummins. I feel it is incumbent on me to make a point of order on the fact that trans people are being characterised as predators, and that is deeply undemocratic and deeply worrying. That is not what this debate is about. For the Member to be using such language is unparliamentary. I seek your guidance, Mrs Cummins.

[Judith Cummins (in the Chair)]

That is not a point of order because it is not a matter for the Chair.

[Miriam Cates]

Further to that point of order, Mrs Cummins. In response to the hon. Member for Livingston (Hannah Bardell), I was making the point that the vast majority of sexual predation is by men on women and children. That is what society has evolved to protect against.

[Judith Cummins (in the Chair)]

I thank the hon. Lady, but that is not a matter for the Chair. I call Dame Angela Eagle.