Legislative Definition of Sex

Peter Gibson Excerpts

Monday 12th June 2023 Westminster Hall

[Peter Gibson (Darlington) (Con)]

It is a pleasure to serve under your chairmanship, Sir George. I congratulate the hon. Member for Gower (Tonia Antoniazzi) on ably leading the debate. Some 263 of my Darlington constituents have signed the petitions we are debating, but these issues are important to us all.

At the outset, I want to say this: trans people matter to me—trans people matter to me as a member of the LGBT community myself, trans people matter to me as members of my family and, most importantly, trans people matter to me as members of the community I represent.

This whole debate prompts strong feelings on all sides, and it is important that we in this place are careful to avoid fanning the flames of an already inflammatory backdrop. By and large, the Equality Act 2010 is clearly drafted and effective legislation, and I speak in favour of the status quo petition. In her recent response to the Government, Baroness Falkner said of changing the definition of sex that it

“could bring clarity in a number of areas”

but also “ambiguity in others.” This place should always be willing to consider clarifications to our legislation where ambiguity exists, but doing that as a knee-jerk reaction does not strike me as good law making.

My overriding fear is that the change suggested in respect of further definitions of sex would run the risk of excluding trans people from effective protection by the Equality Act. By restricting the definition of sex to sex assigned at birth, we could have a situation whereby protection from discrimination created a two-tier system. Trans people who are perceived to be cisgender would have more protection under the law than trans people who are not perceived to be cisgender. Changing the definition of sex in the Equality Act runs the risk of creating an environment of unintended consequences for people who do not conform to gender stereotypes, but nevertheless are cisgender. We must not make it easier to exclude, and safer to discriminate against, people who are part of one of the most vulnerable communities in society.

When looking at what these petitions call for, it is important that we note that changing the statutory definition of a protected characteristic is not “modifying” or “clarifying” the Equality Act; it is in fact changing it, and changing it in a way that alters its original intention and that could throw into question over 10 years of case law. The Gender Recognition Act 2004 establishes that a trans person with a gender recognition certificate is recognised in their legal sex for all purposes. It is already possible to exclude trans people from single-sex settings and services, where that exclusion is proportionate and has a legitimate aim. Many services already operate on that basis. What purpose would changing the definition of sex in the Equality Act serve, aside from allowing it to become even easier for people to discriminate against trans people?

As we have already heard, the population of trans people in the UK is small, with only a few hundred gender recognition certificates issued each year. Reducing trans people’s protections in law, and increasing the level of risk and uncertainty that they have in managing their day-today lives, should not be the goal of any Government or Parliament committed to LGBT equality.

I am determined that everyone in the UK should be free to live their life and fulfil their potential, regardless of their sex, gender identity, race or disability. I am clear that transgender people should be free to prosper in Britain. Our country has come a long, long way on LGBT issues—further than I could have ever imagined as a young man. We must not turn that progress back.

--- Later in debate ---

[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.