Legislative Definition of Sex

Debate between Lloyd Russell-Moyle and Tonia Antoniazzi

Monday 12th June 2023 Westminster Hall

[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—

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

My hon. Friend is making a good and balanced speech so far. Does she recognise that when the Equality Act was being passed, the Liberal Democrat spokeswoman at that time asked our Minister from the Labour party if it was the first step to understanding self-ID and moving towards that? That was in Hansard. This issue was thought about when the Equality Act was being created, and the affirmative response was given to that question at that time.