This is Baroness Nicholson's contribution. I think this is important because she talks about the meaning of 'gender reassignment' in the Equality Act 2010 and who should be covered by it. It is generally interpreted to mean if someone wakes up one day and says they have decided that they are transgender, they are covered. She disputes this interpretation.
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I request the Minister to think about the point I am about to make, which concerns the confusion the Equality Act 2010 has created around the definition of a woman. I will offer a comparison between the Act and annexe B of the National Health Service guidelines on same-sex accommodation. Why have I chosen the National Health Service? It is the single biggest employer in Britain and probably offers the most comprehensive suite of changing and toilet facilities of any organisation.
Annexe B is headed, “Delivering same-sex accommodation for trans people and gender variant children”. I point out to the Minister that this misrepresents the legislation that it purports to represent. The second paragraph starts:
“Under the Equality Act 2010, individuals who have proposed, begun or completed reassignment of gender enjoy legal protection against discrimination. A trans person does not need to have had, or be planning, any medical gender reassignment treatment to be protected under the Equality Act: it is enough if they are undergoing a personal process of changing gender”.
As is clear, instead of quoting the Equality Act, this guideline paraphrases Section 7(1), which states:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.
While the need to be proposing to transition, in the process of transitioning or to have completed transition is included, the NHS guideline omits the phrase, “by changing physiological or other attributes of sex”.
In order to qualify for the protected characteristic of gender reassignment within the meaning of the Act, the individual must intend to embark on or to have actively embarked on a process of physiological change. While the Act indicates that this should include surgery, the minimum requirement should be that the individual is taking cross-sex hormones or can provide evidence to prove that they are planning to do so.
With regard to, “changing … other attributes of sex”, since sex is biological, this refers to making some kinds of anatomical change. The Equality Act as passed into law never intended that individuals could simply self-ID as the sex they are not. Instead, the Act established qualifying criteria. Individuals wanting to claim protection from discrimination by virtue of gender reassignment had either to be changing aspects of their physiology or be able to prove an established intention to do so.
Proof that the authors of the NHS guidance have misunderstood Section 7(1) of the Equality Act comes in the second half of the second paragraph:
“In addition, good practice requires that clinical responses be patient-centred, respectful and flexible towards all transgender people whether they live continuously or temporarily in a gender role that does not conform to their natal sex”.
Section 7 of the Act offers nothing whatsoever about living in a gender role: it is about making physical changes or at least having evidence-based intentions to do so. A man could wear a frock, rouge and nail gel every day of the week for 10 years without qualifying for the protected characteristic of gender reassignment according to the Equality Act 2010.
It must be concluded that the NHS hospital guidelines contained in annexe B are significantly divorced from the wording and intent of the legislation that they claim to reflect. I want the Minister to think about that and identify whether the NHS should in fact withdraw its guidelines and do something that actually follows the Act.