EHRC chair backs law change amid 'confusion' over trans issues
Head of equalities watchdog says there is a ‘clear need’ to change the law to protect single-sex spaces amid ‘widespread confusion’ over trans issues in hospitals, schools and offices
- Baroness Falkner, the chair of the EHRC, says there’s a ‘clear need’ for change
The head of Britain’s equalities watchdog has said there is a ‘clear need’ for change as she backed legal reforms that could exclude trans women from women’s-only spaces.
Baroness Kishwer Falkner, the chair of the Equality and Human Rights Commission, pointed to ‘widespread confusion’ on trans issues for businesses, hospitals, schools, shops and offices.
She has recently written to Kemi Badenoch, the women and equalities minister, to recommend updating legislation to make clear that ‘sex’ refers to ‘biological sex’.
The EHRC chief noted how re-writing the 2010 Equality Act could bring clarity in contested areas such as trans women being able to access women’s-only wards in hospitals, or competing in women’s sports.
Rishi Sunak is now expected to take action on the advice of the watchdog, with the Prime Minister having pledged to review the Act during last summer’s Tory leadership race.
He previously described the 2010 legislation as ‘a Trojan horse that has allowed every kind of woke nonsense to permeate public life’.
Labour today welcomed a review of the Equality Act, with a party spokesperson saying: ‘Clarification is a good thing. We will look closely at what’s brought forward.’
Baroness Kishwer Falkner, the chair of the Equality and Human Rights Commission, pointed to ‘widespread confusion’ on trans issues for businesses, hospitals, schools, shops and offices
The EHRC chief has recently written to Kemi Badenoch, the women and equalities minister, to recommend updating legislation to make clear that ‘sex’ refers to ‘biological sex’
Rishi Sunak is now expected to take action on the advice of the watchdog, with the Prime Minister having pledged to review the Act during last summer’s Tory leadership race
In an article for The Times, Baroness Falkner said there was no need ‘for conflict between women’s rights and the rights of trans people’ but added there was ‘ambiguity and confusion about what the Act means for both groups’.
She added there was a ‘current lack of a definition’ over the term ‘sex’ in the Equality Act, which means the EHRC has ‘taken the position that a trans woman with a GRC (Gender Recognition Certificate), for example, is in principle entitled to access women’s spaces such as a hospital ward, a woman’s changing room, and so on’.
Baroness Falkner acknowledged ‘this is contested’, writing: ‘Some people think this cannot be the meaning of “woman” in the Equality Act. Having considered this in detail, we agree.
‘There is ambiguity in the legislation. As a result, there is now widespread confusion about what the Act means both for trans people who have GRCs and for those who do not, as well as for women and men.
‘Businesses and organisations such as hospitals, schools, shops and workplaces are all impacted by the ambiguity, and many struggle to understand how they can legally provide the kinds of services they wish to operate.
‘It is against this background that we have recommended to the Government that it consider adopting a biological definition of sex in the Equality Act.’
She added: ‘We have advised the Government to do further work to carefully identify and consider the potential implications of this change.
‘And we think there is a need for a broader consideration of how we, as a nation, want to approach issues of sex and gender.
‘Whatever course we choose, it is clear that change is needed.’
The EHRC’s recommendation of an overhaul of the Equality Act has been criticised by transgender campaigners.
Mermaids, a British charity that supports transgender children and young people, said: ‘It’s extremely distressing to see the UK’s equality watchdog, the EHRC, seeking to strip trans people’s rights from the Equality Act 2010.
‘By redefining sex, they support removing the rights and protections trans people have had for over a decade.’
LGBTQ+ campaigners Stonewall said: ‘Rather than finding a way forward on this discussion, this move risks opening yet another chapter in a manufactured culture war that will see little benefit to women, cis and trans alike.’
Baroness Falkner, in a letter to Ms Badenoch, said updating the law could bring clarity over women’s-only hospital wards, as well as the exclusion of trans women from women’s sports
Earlier this week, in a 19-page letter to Ms Badenoch, Baroness Falkner identified eight areas where updating the Equality Act could bring benefits.
This includes in the employment of staff in safe spaces such as women’s or girls’ hostels, the use of women’s-only wards in hospitals, and the exclusion of trans women from women’s sports.
On women’s-only wards, the EHRC chair wrote: ‘At present, the starting point is that a trans woman with a GRC (Gender Recognition Certificate) can access a “women-only” service.
‘The service provider would have to conduct a careful balancing exercise to justify excluding all trans women.
‘A biological definition of sex would make it simpler to make a women’s-only ward a space for biological women.’
And on women’s sports, she added: ‘At present, to exclude trans women with a GRC from women’s sports, the organiser must show that it was necessary to do so in the interests of fairness or safety.
‘A biological definition of sex would mean that organisers could exclude trans women from women’s sport without this additional burden.’
But Baroness Falkner also warned of three areas where a change to the Equality Act ‘would be more ambiguous or potentially disadvantageous’.
She listed these as provisions on equal pay, direct sex discrimination, and indirect sex discrimination.
‘At present, a trans woman with a GRC can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a GRC could not,’ the EHRC chair wrote.
‘The proposed biological definition would reverse this situation. The effect would be to transfer this right from some trans women to some trans men.’
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