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EHRC Equality Act proposals: how bad are they and who backs them? [1]
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Date: 2023-04
Trans people in the UK could face a significant rollback of rights if proposals made this week by the Equality and Human Rights Commission (EHRC) to redefine ‘sex’ in the landmark Equality Act are adopted by the government.
The EHRC wrote to the government on Tuesday suggesting it should end rights and protections based on a person’s legal sex and instead base them on ‘biological sex’ for the purposes of the act, which came into force in 2010.
The letter does not in itself change any laws. But it is likely that the government will seek to press ahead with its recommendations, which were made after a request for guidance from the minister for women and equalities, Kemi Badenoch.
Doing so could result in a breach of both domestic and international human rights obligations in Britain.
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What is the EHRC?
The EHRC was set up to ensure the UK complies with international human rights standards. But this purpose is seriously undermined by the fact its commissioners – who decide the direction of the organisation – are political appointments.
Over the last few years, the government has ensured appointments to the EHRC reflect its political agenda. This was highlighted in a letter raising concerns about the independence of the EHRC to the Global Alliance of National Human Rights Institutions (GANHRI) in June 2022, sent by Stonewall and Disabled People Against Cuts on behalf of 26 LGBTQ+ charities and allies.
The letter sounded the alarm about a 2020 speech made by Liz Truss, then the women and equalities minister, in which she appeared to say she was making appointments to the EHRC to ensure its work reflected the government’s political agenda. She criticised what she called “groupthink” and “virtue signalling” – both familiar right-wing talking points – and claimed:
“Too often, the equality debate has been dominated by a small number of unrepresentative voices, and by those who believe people are defined by their protected characteristic and not by their individual character. This school of thought says that if you are not from an ‘oppressed group’ then you are not entitled to an opinion and that this debate is not for you. I wholeheartedly reject this approach… That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission.”
The charities’ letter claimed the new commissioners “often adhere to regressive views which align with the government’s, but which are out of step with the vast majority of equalities and human rights bodies”.
Although GANHRI did not recommend downgrading the EHRC’s international ‘A’-grade accreditation in response, it made several pointed comments about the EHRC’s failures in a subsequent report, saying the process for appointments was “not sufficiently broad and transparent”, and that the EHRC was insufficiently plural.
Most damningly, the report insisted that the EHRC “take visible and clear steps to strengthen its working relationship with civil society organizations, including organizations that work to promote and protect the human rights of LGBTI people, migrants and asylum seekers, persons with disabilities and organizations working on racial discrimination”.
Despite this, the EHRC has continued to operate in a way antithetical to its purpose of protecting human rights. This week, a Trans Safety Network investigation revealed the significant extent to which the EHRC has been ‘captured’ by the anti-trans right. Multiple former employees have alleged that opposing trans rights has become an institutional priority for the EHRC.
As well as alleged resignations by staffers in response, two former legal directors have publicly decried the organisation’s apparent abandonment of the human rights values it is supposed to uphold. One, Grey Collier, has condemned the EHRC for lacking independence, not upholding human rights for everyone, and failing to understand the law, while a second, Elizabeth Prochaska, accused it of endangering trans people.
Given all this, it is perhaps unsurprising that the EHRC made this week’s recommendation. But we must not underestimate the extent to which such a change would harm trans people, and represent an abandonment of human rights norms.
What changing the Equality Act 2010 would mean
Under the current law, upon acquisition of a Gender Recognition Certificate (GRC), a trans person becomes their ‘acquired’ sex for all legal purposes. There is no distinction between sex and gender in UK law.
The proposal made in the letter from the EHRC is that, for the purposes of the Equality Act 2010, the term ‘sex’ be defined as ‘biological sex’, rather than its current definition of legal sex (ie what is recorded on your birth certificate, either at birth or as amended by a GRC).
The term ‘biological sex’ has no coherent definition in law. The leading case on the legal definition of sex, and of ‘biological sex’, is known as Corbett v Corbett, a divorce case from 1969. The judge, Roger Ormrod, identified three components of ‘biological sex’ that are to be determined at birth and cannot be altered, even by subsequent surgical intervention. These components are chromosomal, gonadal and genital.
Trouble is, these components do not always exclusively point towards either ‘male’ or ‘female’. They may be inconsistent or ambiguous. It is thus impossible to conclusively determine a person’s ‘biological sex’ based on any one of these characteristics alone. This is why the concept of ‘legal sex’ was developed.
The EHRC’s suggestion that we define sex using so-called ‘biological sex’ is likely to amount to the same process that currently applies to legal sex – whatever is recorded on the birth certificate – but with the deliberate disapplication of the Gender Recognition Act.
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[1] Url:
https://www.opendemocracy.net/en/5050/ehrc-equality-act-trans-rights-sex-definition-legal-biological/
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