Legislative Definition of Sex

Maria Caulfield Excerpts

Monday 12th June 2023 Westminster Hall

[The Minister for Women (Maria Caulfield)]

It is a pleasure to serve under your chairmanship, Sir George.

I am especially grateful to the hon. Member for Gower (Tonia Antoniazzi) for introducing this debate in such a sensitive way, and I am also grateful to all right hon. and hon. Members for their contributions. I feel that we should be able to debate these issues openly and honestly, without being labelled or attacked for having particular opinions or views, and that we should be able to disagree respectfully. I also feel that on all sides of the debate, despite the reservations of some, we have been able to do that this afternoon in a civilised way and I pay tribute to everyone involved.

[Peter Gibson]

Members will have noticed that my hon. Friend the Member for Bridgend (Dr Wallis) has not returned to the Chamber. As he is this House’s only openly trans Member, I think it is really important that we send a message to him that this important debate is not about him and that it should be conducted with love, respect and care for every single person who is in the trans community, whether they be in this House, in the Public Gallery or watching from outside.

[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.

[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.

[Stephen Doughty]

I wonder if the Minister has had a chance to consider the interim advice given by the United Nations independent expert on sexual orientation and gender identity, who has been very critical of suggestions of opening up the Equality Act and reviewing these positions, seeing them as taking rights away from people who should be protected and are protected at present.

[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.